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SNEERSONE AND KAMPANELLA v. ITALY - 14737/09 [2011] ECHR 1107 (12 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1107.html
Cite as:
(2013) 57 EHRR 39,
[2011] 2 FLR 1322,
[2011] Fam Law 1188,
[2011] ECHR 1107,
57 EHRR 39
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SECOND
SECTION
CASE OF
ŠNEERSONE AND KAMPANELLA v. ITALY
(Application
no. 14737/09)
JUDGMENT
STRASBOURG
12 July
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Šneersone and Kampanella v. Italy,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
David
Thór Björgvinsson,
Dragoljub
Popović,
Giorgio
Malinverni,
András
Sajó,
Guido
Raimondi,
Paulo
Pinto de Albuquerque,
judges,
and
Stanley Naismith, Section
Registrar,
Having
deliberated in private on 21 June 2011,
Delivers
the following judgment:
PROCEDURE
The
case originated in an application (no. 14737/09) against the Italian
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Latvian nationals, Ms Jeļizaveta
Šneersone and her son Marko Kampanella (“the
applicants”), on 9 March 2009.
The
applicants were represented by Ms A. Rektiņa, a lawyer
practising in Rīga. The Italian Government (“the
Government”) were represented by their Agent, Mrs E. Spatafora,
the Agent of the Government.
The
applicants alleged, in particular, that the Italian Government had
violated their right to respect for their family guaranteed by
Article 8 of the Convention. They furthermore pointed out that the
first applicant’s absence from the hearing of the Rome Youth
Court had rendered the decision-making process in the Italian courts
unfair.
On
26 November 2009 the President of the Chamber to which the case had
been allocated decided to give notice to the Italian Government of
the part of the application concerning the procedural fairness of the
proceedings in Italy, as well as the alleged interference with the
right to respect for the applicants’ family life.
The
parties replied in writing to each other’s observations. In
addition, third-party comments were received from the Latvian
Government, which had exercised its right to intervene (Article 36 §
1 of the Convention and Rule 44 § 1 (b)). The parties replied to
those comments (Rule 44 § 6).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1973 and 2002 respectively and live in Rīga.
A. Events prior to the applicants’ departure from
Italy
In
2002 Marko was born to the first applicant in Italy. His father was
an Italian national, who was never married to the first applicant but
who has never disputed his paternity of Marko. In 2003 Marko’s
parents separated and the applicants moved to a separate residence in
Cerveteri, Italy. The applicants allege that ever since Marko’s
birth he has in practice been in the exclusive care of his mother,
and his father’s participation in his upbringing has been
minimal.
At
the request of the first applicant, on 20 September 2004 the Rome
Youth Court (Tribunale per i minorenni di Roma) granted
custody of Marko to his mother because the ongoing conflict between
the parents made joint custody unfeasible. However, the court held
that the father had a right to have his son stay at his home on
specified days of the week and also whenever the first applicant was
travelling outside Rome for a length of time exceeding one week or
outside Italy for any length of time. The decision came into force on
the day it was adopted.
Marko’s
father appealed against that decision, requesting that joint custody
be granted or that he be granted sole custody and that the first
applicant be forbidden to take the child abroad or to change her
place of residence without the father’s prior approval. The
Youth Section of the Rome Court of Appeal (Corte d’appello
di Roma. Sezione per i minorenni) rejected his request in a
decision of 1 March 2005, noting, inter alia, that the child
was developing well and that it was impossible to ensure his
development by granting sole custody to the father. Furthermore, it
was noted that the father’s concern that the first applicant
might move to Latvia and take their son with her was unfounded
because a judge in a guardianship hearing (giudice tutelare, “the
guardianship judge”) had previously refused to issue a
passport to Marko and also because his mother had strictly adhered to
the ruling of the first-instance court and had left the child in his
father’s care when travelling to Latvia.
On
24 June 2005 the guardianship judge granted an authorisation to issue
a passport to Marko. On 11 July 2005 Marko’s father appealed
against that decision. On 14 November 2005 the Rome Youth Court
rejected Marko’s father’s appeal, because there was no
evidence that the first applicant was planning to leave Italy with
the child.
On
3 February 2006 the Court (Tribunale) of Civitavecchia ruled
that Marko’s father had to make child support payments. The
decision noted, inter alia, that the father had previously
avoided financially supporting his son. Marko’s father failed
to make the ordered payments and on 8 April 2006 the first applicant
lodged a complaint about this with the Italian police.
B. The applicants’ departure and the subsequent
proceedings in Italy
It appears that because of Marko’s father’s
failure to financially support the applicants their only income was
money which the first applicant’s mother was sending from
Latvia. However, in December of 2005 the first applicant’s
mother informed her that she was no longer able to provide financial
support. According to the applicants it was for that reason that they
had no other choice but to return to Latvia in April of 2006. The
applicants indicate that they subsequently continued to return to
Italy for brief periods of time. According to the Italian Government,
they have never been back.
On
7 February 2006 Marko was granted Latvian citizenship, since it was
established that his mother’s permanent residence at the time
of his birth had been in Latvia. Subsequently, the first applicant
registered Marko’s permanent residence in an apartment in Rīga
belonging to her.
On
an unspecified date Marko’s father requested the Rome Youth
Court to grant him interim sole custody of Marko and to order his
return to Italy.
On
5 June 2006 that court issued a decision in which it upheld the
father’s request. The decision noted that the first applicant’s
actions had been harmful to the child. The court further held that it
did not have jurisdiction to order the child’s return to Italy
but indicated that Marko had to reside with his father. The decision
finally provided that a hearing would be held on 25 October 2006 and
that Marko’s father had an obligation to inform the first
applicant of the court’s decision before 20 September 2006.
The
applicants submit that the first applicant was not informed of the
hearing that had been scheduled, nor did she receive a summons to it.
The applicants further submit that Marko’s father had never
requested full custody, but instead had asked the court to
re-establish his rights of contact with the child and to order his
return to Italy. The first applicant alleges that she only learned
about the adopted decision in March of 2007.
C. The Hague Convention proceedings in Latvia
On
16 January 2007 (by what appears to be a clerical error the document
is dated 16 January 2006) the Italian Ministry of Justice, in its
capacity as the Central Authority under Article 6 of the Convention
on the Civil Aspects of International Child Abduction (“the
Hague Convention”), issued a request for Marko to be returned
to Italy.
After
receiving the request, the Latvian Ministry of Child and Family
Matters (Bērnu un ģimenes lietu ministrija), which
is the Latvian Central Authority within the meaning of the Hague
Convention, initiated civil proceedings against the first applicant
in accordance with Article 7 of the Hague Convention. The Rīga
City Vidzeme District Court, which had been allocated the case,
requested the Rīga City Orphans’ Court (Rīgas
bāriņtiesa) to evaluate the applicants’ residence
and to issue an opinion concerning the possibility of returning Marko
to his father in Italy. After visiting the applicants’
residence, by a decision of 20 March 2007 the Orphans’ Court
established that the child’s living conditions were beneficial
for his growth and development. It further noted that Marko had
adjusted to living in his mother’s residence and that she was
ensuring his full physical and intellectual development. Accordingly,
the Orphans’ Court concluded that the child’s return to
Italy would not be compatible with his best interests.
That
conclusion was also supported by the findings of a psychologist,
whose opinion had been requested by the applicants’ lawyer. In
a report dated 30 March 2007 the psychologist concluded that
severance of contact between Marko and his mother was not to be
allowed, in that it could negatively affect the child’s
development and could even create neurotic problems and illnesses.
By
a letter of 6 April 2007, the Italian Central Authority attested to
the Latvian Central Authority that if any of the circumstances
mentioned in Article 13 (b) of the Hague Convention arose Italy would
be able to activate a wide-ranging child protection network which
could ensure that Marko and his father received psychological help.
On
11 April 2007 the Rīga City Vidzeme District Court issued a
decision by which it refused the father’s request to return
Marko to Italy. That court based its decision on the Hague Convention
and Council Regulation (EC) No. 2201/2003 of 27 November 2003
concerning jurisdiction and the recognition and enforcement of
judgments in matrimonial matters and matters of parental
responsibility (“the Regulation”). The court held that
the removal of Marko had been wrongful within the meaning of the
Hague Convention and the Regulation, since it had been carried out
without his father’s permission. It was further noted that it
was not expedient to hear Marko’s own opinion, since he was
four years old at the time and was unable to form an opinion about
which of his parents he should live with.
The
court considered it necessary to assess whether the circumstances
provided for in Article 13 (b) of the Hague Convention existed. Its
conclusion was that those circumstances existed. It noted the ties
between Marko and his mother and the fact that he had settled well in
Latvia and considered that his continued residence in Latvia was
essential for his development. The Vidzeme District Court found that
the provisions of Article 11 (4) of the Regulation had not been
fulfilled, because it was financially impossible for the first
applicant to follow Marko to Italy if he were returned there.
Furthermore, the guarantees provided for by Italy could not ensure
that the child would not suffer psychologically and that his mental
health would not be prejudiced. Accordingly the court applied Article
13 (b) of the Hague Convention and refused the father’s
request.
On
24 May 2007 the Rīga Regional Court adopted a final decision, by
which it rejected the father’s appeal against the decision of
the Vidzeme District Court. In substance the Regional Court agreed
with the conclusions of the first-instance court, adding that the
guarantees offered by the Italian Central Authority concerning the
protection available to Marko after his potential return to Italy
were too vague and non-specific. It was also mentioned that Marko’s
father had made no effort to establish contact with his son ever
since the applicants’ departure from Italy.
On
4 June 2007 the first applicant requested the Rīga City Vidzeme
District Court to grant her sole custody of Marko. On 8 January 2008
the Rīga Custody Court issued an opinion in which it concluded
that granting sole custody of Marko to his mother was in his best
interests. The Custody Court indicated among other considerations the
fact that Marko’s father had not seen his son since 2006.
D. Proceedings based on the Regulation
On 7 August 2007 Marko’s father lodged a request
with the Rome Youth Court, which was based on Article 11 (4),
(7) and (8) of the Regulation, to issue an immediately executable
decision ordering Marko’s return to Italy.
On
11 December 2007 the first applicant submitted her observations to
that court, in which she acknowledged that she had left Italy because
of an ongoing conflict with Marko’s father and because of her
difficult financial situation. She noted that Marko’s father
had never travelled to see his son in Latvia; however, she stated
that the applicants were always available to come to Italy to meet
Marko’s father during school holidays. In conclusion, she
requested that the court order child support payments in the amount
of 700 euros (EUR) per month.
In
the context of separate proceedings, on 11 January 2008 the
Civitavecchia Court made a judgment concerning the first applicant’s
request for child support payments and ordered Marko’s father
to pay the first applicant EUR 4,800 plus interest, starting from 14
October 2004.
By a decision of 21 April 2008 the Rome Youth Court
upheld the father’s request. It considered that the only role
left to it by Article 11 (4) of the Regulation was to verify
whether adequate arrangements had been made to secure the protection
of the child from any identified risks within the meaning of Article
13 (b) of the Hague Convention after his or her return. After
considering the first applicant’s submissions, the court noted
that the father had proposed that Marko would stay with him, while
the first applicant would be authorised to use a house in Aranova for
periods of fifteen to thirty consecutive days during the first year
and subsequently for one summer month every other year (the first
applicant would have to cover her own travel expenses and one half of
the rent of the house in Aranova), during which time Marko would be
staying with his mother, while the father would retain the right to
visit him on a daily basis. Marko would be enrolled in a kindergarten
which he had attended before his removal from Italy. He would also
attend a swimming pool he had used before his departure from Italy.
The father furthermore undertook to ensure that the child would
receive adequate psychological help and would attend Russian-language
classes for Russian children. The court considered such an
arrangement adequate to fulfil the requirements of the Regulation and
ordered an immediate execution of its decision to return Marko to
Italy and to have him reside with his father. The court also pointed
out that it would be preferable if the first applicant accompanied
Marko on his way to Italy but, should that prove to be impossible,
his return would be arranged by the Italian embassy in Latvia. Due to
the urgent nature of the case, the decision was pronounced to be
immediately executable.
On
18 June 2008 (in what appears to be a clerical error, the date
indicated in the document is 18 June 2009) the first applicant lodged
a request with the Youth Court to suspend the execution of its
decision. She argued that Marko had not been heard by the tribunal
and that the Youth Court had not taken into consideration the
arguments which the Latvian courts had used in their decisions when
applying Article 13 of the Hague Convention.
On
20 June 2008 the first applicant lodged an appeal against the
decision of the Rome Youth Court of 21 April 2008. In her appeal she
requested that the execution of that decision be suspended; that the
appeal court hear Marko; that there be an order that she retain sole
custody of Marko; and that Marko’s father be ordered to pay EUR
700 per month in child support payments.
On
22 July 2008 the Rome Youth Court adopted a decision in which it
rejected the first applicant’s request to suspend the execution
of the decision of 21 April. That court considered that it was not
appropriate to question the child, taking into account his young age
and the level of maturity. Furthermore, it considered that Article 42
of the Regulation did not oblige it to hear the parties in person. It
remarked that all of the decisions taken by the Latvian courts had
been duly taken into consideration. Finally, the court upheld the
father’s request to issue a return certificate in accordance
with Articles 40, 42 and 47 of the Regulation. The certificate was
issued on 29 July 2008.
On
14 August 2008 the Italian Central Authority sent a letter to the
Latvian Central Authority, forwarding the Youth Court’s
decision of 22 July 2008 and inviting it to advise the Italian side
on “the initiatives that will be taken in order to enforce the
return order made by the Youth Court in Rome”.
On
27 August 2008 a psychologist issued another report on Marko’s
psychological state. The report concluded that the child had
developed certain psychological problems in connection with his
father’s request to return him to Italy. It further reiterated
the conclusion from the earlier report, that Marko had strong
emotional ties with his mother, the severance of which was
impermissible.
On
10 September 2008 the first applicant received information from the
Latvian Central Authority about the request made by the Italian
Central Authority. The first applicant was informed that Latvia had
an obligation to enforce the 21 April 2008 decision of the Rome Youth
Court.
On
13 February 2009 the first applicant submitted a request to the Rīga
City Vidzeme District Court, requesting it to indicate interim
measures and not to allow Marko’s return to Italy “until
he himself agrees to return to his father in Italy”. Further,
she requested the court to require the Rome Court of Appeal and the
Rome Youth Court to surrender their competence to the Vidzeme
District Court, since that court had already, on 4 June 2007, been
allocated a still pending case concerning the granting of sole
custody of Marko to his mother, and also because the child’s
permanent residence was in Latvia.
On
18 February 2009 the Vidzeme District Court adopted a decision in
which it decided not to proceed with the first applicant’s
request concerning the question of Marko’s custody, since it
considered that the first applicant’s appeal against the Rome
Youth Court’s decision of 21 April 2008, which was pending at
the time before the Rome Court of Appeal, concerned the same subject
matter, with the same parties involved.
On
21 April 2009 the Rome Court of Appeal adopted a decision
concerning the first applicant’s appeal against the Rome Youth
Court’s decision of 21 April 2008. The appeal court first
of all observed that pursuant to Article 11 (8) of the
Regulation (see below, paragraph 45) it had jurisdiction to decide
the question of the child’s return to Italy. It then went on to
observe that the first-instance court had correctly implemented the
procedure set out in Article 11 (7) of the Regulation (see
below, paragraph 45), as attested by the reasoned opinion of the
European Commission (see below, paragraphs 39-45). The court
continued by observing that the decision to grant Marko’s
father sole custody had been motivated by the first applicant’s
behaviour when she had chosen to take the child to Latvia and by the
father’s undertaking to take care of the child in Italy. The
Court of Appeal therefore upheld the decision of the Rome Youth Court
and ordered that after the child’s return to Italy he be
enrolled in a primary school.
On
10 July 2009 the bailiff of the Rīga Regional Court charged with
the execution of the Rome Youth Court decision of 21 April 2008
invited Marko’s father to provide assistance in the execution
of that decision by re establishing contact with his son. It
appears that Marko’s father has not responded to that request
in any way.
E. Proceedings in the European Commission
On 15 October 2008 the Republic of Latvia brought an
action against Italy before the European Commission in application of
Article 227 of the Treaty Establishing the European Community. Latvia
alleged, in particular, that the above-described proceedings in Italy
(the decision adopted on 21 April 2008 and the issuing of the return
certificate in July 2008) did not conform to the Regulation, in that
neither of the applicants had been heard by the Rome Youth Court on
21 April 2008, and also that the Rome Youth Court had ignored the
decisions of 11 April 2007 of the Rīga City Vidzeme District
Court and of 24 May 2007 of the Rīga Regional Court.
On
15 January 2009 the Commission issued a reasoned opinion. It held
that Italy had violated neither the Regulation nor the “general
principles of the Community law”. In so far as is relevant to
the case before the Court, the Commission held as follows.
At
the outset it reiterated that, given the particular circumstances of
the case, where Latvia was disputing the legality of the actions of
an Italian authority with a judicial function, the scope of the
Commission’s review was very limited. The Commission could only
review matters of procedure, not substance, and it had to respect the
decisions made by the Italian courts in the exercise of their
discretionary powers.
Concerning
the argument of the Republic of Latvia that the decision of 21 April
2008 had been adopted without attempting to obtain Marko’s
opinion, the Commission stressed that it followed from the
Regulation, the United Nations Convention on
the Rights of the Child (“the UN Convention”), the
Hague Convention and the Charter of Fundamental Rights of the
European Union that hearing a child’s opinion with regard to
questions concerning that child was a fundamental principle. However,
that principle was not absolute. What had to be taken into account
was the level of the child’s development. That level was not
and could not be defined in any international instruments, therefore
the national authorities retained wide discretion in such questions.
The Commission held that the Italian Central Authority had used that
discretion and indicated in the certificate of return that it had not
been necessary for the Italian courts to hear Marko. Therefore, none
of the international instruments that had been invoked by Latvia had
been breached.
Latvia
further criticised the fact that the decision of 21 April 2008 had
been adopted without duly taking into account the position of the
first applicant, and that the decision had been adopted without
hearing either of the parties, including the first applicant, who was
neither informed of the time of the forthcoming hearing nor invited
to take part in it. The Commission noted that the decision of 21
April 2008 had been adopted in written proceedings, without hearing
oral submissions of either of the parties, which was fully in
conformity with the applicable Italian procedural legislation. The
Commission interpreted Article 42 (2) (b) of the Regulation
(see below, paragraph 51) in the light of the Court’s case-law
(referring in particular to Dombo Beheer B.V. v. the Netherlands,
27 October 1993, § 32, Series A no. 274), and considered that
the use of written proceedings was permissible as long as the
principle of equality of arms was observed. The Commission observed
that the first applicant had been given an opportunity to submit
written observations on equal grounds with Marko’s father and
thus neither the Regulation nor the UN Convention had been violated.
Lastly,
Latvia criticised the decision of 21 April 2008 and the related
return certificate for ignoring the Latvian authorities’
reasons for refusing to order Marko’s return to Italy. The
Commission indicated that its role was not to analyse the substance
of the Italian authorities’ decisions – it was limited to
appraising the compliance with the procedure which led to the
adoption of those decisions with the procedural requirements of the
Regulation. Nothing in the Regulation forbade the Italian authorities
to come to a conclusion that was opposite to the one reached by the
Latvian authorities. Quite to the contrary, the Commission considered
that the Regulation gave the country of the child’s residence
prior to the abduction “the final say” in ordering the
return, even if his or her new country of residence had declined to
order the return. In this regard the Commission noted that the Rīga
Regional Court, when adopting the decision of 24 May 2007 (see above,
paragraph 23), had referred to the Law of Civil Procedure, section
64419 (6) (2) of which permits refusal to return
a child if the child is well settled in Latvia and his or her return
is not in his or her interests. The Commission questioned the Latvian
court’s alleged failure to invoke the “much more binding”
Article 13 of the Hague Convention, which in their opinion
demonstrated that the Latvian courts had devoted attention to Marko’s
situation in Latvia instead of the potential consequences of his
return to Italy. In short, the Commission had “not discovered
any indications” that life in Italy together with his father
would expose Marko to physical or psychological harm or otherwise
place him in an intolerable situation. What is more, the Commission
considered that the Rome Youth Court in its decision of 21 April 2008
had directly addressed the Rīga Regional Court’s concerns
that the measures envisaged for Marko’s protection upon his
return to Italy were too vague – the Italian court had set out
specific obligations on the father which would allow for balanced
development of the child and for him to have contact with both
parents.
In
conclusion the Commission conceded that the decision of 21 April 2008
did not contain a detailed analysis of either the arguments of the
first applicant or of those of Marko’s father. However, it
considered that the Regulation did not require such an analysis.
Therefore, the exact procedure to be followed in that respect was
left to the national courts’ discretion. Taking that into
account, it was found that neither Latvia nor the Commission could
dispute the particular formulation of the Italian court’s
decision.
II. RELEVANT INTERNATIONAL LAW
The Hague Convention, which has been ratified by Latvia and Italy,
provides, in so far as relevant, as follows.
Article 3
“The removal or the retention of a child is to be
considered wrongful where –
a) it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or alone,
under the law of the State in which the child was habitually resident
immediately before the removal or retention; and
b) at the time of removal or retention those rights were
actually exercised, either jointly or alone, or would have been so
exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a)
above, may arise in particular by operation of law or by reason of a
judicial or administrative decision, or by reason of an agreement
having legal effect under the law of that State.”
Article 4
“The Convention shall apply to any child who was
habitually resident in a Contracting State immediately before any
breach of custody or access rights. The Convention shall cease to
apply when the child attains the age of 16 years.”
Article 6
“A Contracting State shall designate a Central
Authority to discharge the duties which are imposed by the Convention
upon such authorities. [..]”
Article 7
“Central Authorities shall co-operate with each
other and promote co-operation amongst the competent authorities in
their respective State to secure the prompt return of children and to
achieve the other objects of this Convention.
In particular, either directly or through any
intermediary, they shall take all appropriate measures –
[..]
f) to initiate or facilitate the institution of judicial
or administrative proceedings with a view to obtaining the return of
the child and, in a proper case, to make arrangements for organizing
or securing the effective exercise of rights of access; [..]”
Article 11
“The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings for the
return of children.
If the judicial or administrative authority concerned
has not reached a decision within six weeks from the date of
commencement of the proceedings, the applicant or the Central
Authority of the requested State, on its own initiative or if asked
by the Central Authority of the requesting State, shall have the
right to request a statement of the reasons for the delay. If a reply
is received by the Central Authority of the requested State, that
Authority shall transmit the reply to the Central Authority of the
requesting State, or to the applicant, as the case may be.”
Article 12
“Where a child has been wrongfully removed or
retained in terms of Article 3 and, at the date of the commencement
of the proceedings before the judicial or administrative authority of
the Contracting State where the child is, a period of less than one
year has elapsed from the date of the wrongful removal or retention,
the authority concerned shall order the return of the child
forthwith.
The judicial or administrative authority, even where the
proceedings have been commenced after the expiration of the period of
one year referred to in the preceding paragraph, shall also order the
return of the child, unless it is demonstrated that the child is now
settled in its new environment.
Where the judicial or administrative authority in the
requested State has reason to believe that the child has been taken
to another State, it may stay the proceedings or dismiss the
application for the return of the child.”
Article 13
“Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of the requested
State is not bound to order the return of the child if the person,
institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care
of the person of the child was not actually exercising the custody
rights at the time of removal or retention, or had consented to or
subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would
expose the child to physical or psychological harm or otherwise place
the child in an intolerable situation.
The judicial or administrative authority may also refuse
to order the return of the child if it finds that the child objects
to being returned and has attained an age and degree of maturity at
which it is appropriate to take account of its views.
In considering the circumstances referred to in this
Article, the judicial and administrative authorities shall take into
account the information relating to the social background of the
child provided by the Central Authority or other competent authority
of the child’s habitual residence.”
Article 20
“The return of the child under the provisions of
Article 12 may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms.”
Paragraph
17 of the preamble of the Regulation explains its scope, in so far as
it is relevant to this case, as follows:
“In cases of wrongful removal or retention of a
child, the return of the child should be obtained without delay, and
to this end the Hague Convention of 25 October 1980 would continue to
apply as complemented by the provisions of this Regulation, in
particular Article 11. The courts of the Member State to or in which
the child has been wrongfully removed or retained should be able to
oppose his or her return in specific, duly justified cases. However,
such a decision could be replaced by a subsequent decision by the
court of the Member State of habitual residence of the child prior to
the wrongful removal or retention. Should that judgment entail the
return of the child, the return should take place without any special
procedure being required for recognition and enforcement of that
judgment in the Member State to or in which the child has been
removed or retained.”
With
regard to jurisdiction in cases of child abduction, the Regulation,
in Article 10, provides, in so far as is relevant, as follows:
“In case of wrongful removal or retention of the
child, the courts of the Member State where the child was habitually
resident immediately before the wrongful removal or retention shall
retain their jurisdiction until the child has acquired a habitual
residence in another Member State and:
...
(b) the child has resided in that other Member State for
a period of at least one year after the person, institution or other
body having rights of custody has had or should have had knowledge of
the whereabouts of the child and the child is settled in his or her
new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of
custody has had or should have had knowledge of the whereabouts of
the child, no request for return has been lodged before the competent
authorities of the Member State where the child has been removed or
is being retained;
...
(iv) a judgment on custody that does not entail the
return of the child has been issued by the courts of the Member State
where the child was habitually resident immediately before the
wrongful removal or retention.”
Article
11, which is specifically singled out in the preamble, provides as
follows:
“1. Where a person, institution or other body
having rights of custody applies to the competent authorities in a
Member State to deliver a judgment on the basis of the Hague
Convention [..], in order to obtain the return of a child that has
been wrongfully removed or retained in a Member State other than the
Member State where the child was habitually resident immediately
before the wrongful removal or retention, paragraphs 2 to 8 shall
apply.
2. When applying Articles 12 and 13 of the 1980 Hague
Convention, it shall be ensured that the child is given the
opportunity to be heard during the proceedings unless this appears
inappropriate having regard to his or her age or degree of maturity.
3. A court to which an application for return of a child
is made as mentioned in paragraph 1 shall act expeditiously in
proceedings on the application, using the most expeditious procedures
available in national law.
Without prejudice to the first subparagraph, the court
shall, except where exceptional circumstances make this impossible,
issue its judgment no later than six weeks after the application is
lodged.
4. A court cannot refuse to return a child on the basis
of Article 13 (b) of the [..] Hague Convention if it is
established that adequate arrangements have been made to secure the
protection of the child after his or her return.
5. A court cannot refuse to return a child unless the
person who requested the return of the child has been given an
opportunity to be heard.
[..]
7. Unless the courts in the Member State
where the child was habitually resident immediately before the
wrongful removal or retention have already been seized by one of the
parties, the court or central authority that receives [a copy of an
order on non-return pursuant to Article 13 of the Hague Convention
and of the documents relevant to that order] must notify it to the
parties and invite them to make submissions to the court, in
accordance with national law, within three months of the date of
notification so that the court can examine the question of custody of
the child. [..]
8. Notwithstanding a judgment of non-return pursuant to
Article 13 of the [..] Hague Convention, any subsequent judgment
which requires the return of the child issued by a court having
jurisdiction under this Regulation shall be enforceable in accordance
with Section 4 of Chapter III below in order to secure the return of
the child.”
Pursuant
to Article 40 (1) (b) of the Regulation, its Section 4
applies to “the return of a child entailed by a judgment given
pursuant to Article 11 (8)”
Article
42 in Section 4 provides the following:
“1. The return of a child referred to in Article
40 (1) (b) entailed by an enforceable judgment given in a
Member State shall be recognised and enforceable in another Member
State without the need for a declaration of enforceability and
without any possibility of opposing its recognition if the judgment
has been certified in the Member State of origin in accordance with
paragraph 2.
Even if national law does not provide for enforceability
by operation of law, notwithstanding any appeal, of a judgment
requiring the return of the child mentioned in Article 11 (b) (8),
the court of origin may declare the judgment enforceable.
2. The judge of origin who delivered the judgment
referred to in Article 40 (1) (b) shall issue the
certificate referred to in paragraph 1 only if:
(a) the child was given an opportunity to be heard,
unless a hearing was considered inappropriate having regard to his or
her age or degree of maturity;
(b) the parties were given an opportunity to be heard;
and
(c) the court has taken into account in issuing its
judgment the reasons for and evidence underlying the order issued
pursuant to Article 13 of the 1980 Hague Convention. [..]”
As
concerns the enforcement of judgments requiring the return of a
child, Article 47 of the Regulation provides the following:
“1. The enforcement procedure is
governed by the law of the Member State of enforcement.
2. Any judgment delivered by a court of
another Member Stat and [..] certified in accordance with [..]
Article 42 (1) shall be enforced in the Member State of
enforcement in the same conditions as if it had been delivered in
that Member State.
In particular, a judgment which has been certified
according to [..] Article 42 (1) cannot be enforced if it is
irreconcilable with a subsequent enforceable judgment.”
Lastly,
Articles 60 and 62 of the Regulation provide that the Regulation
“shall take precedence” over the Hague Convention “in
so far as [it concerns] matters governed by this Regulation”
and that the Hague Convention continues “to produce effects
between the Member States which are party thereto”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicants complain under Article 8 of the Convention that the
Italian courts’ decisions ordering Marko’s return to
Italy were contrary to his best interests as well as in violation of
international and Latvian law.
The
applicants also complain under Article 6 of the Convention about the
procedural fairness of decision-making in Italian courts. In
particular, they are critical of the fact that the first applicant
was not present at the hearing of the Rome Youth Court.
The
applicants’ complaints concerning the procedure followed by the
Italian courts were communicated to the Government under Article 8 of
the Convention, which, whilst it contains no explicit procedural
requirements, requires that the decision-making process leading to
measures of interference must be fair and such as to afford due
respect to the interests safeguarded by that Article (see, inter
alia, Iosub Caras v.
Romania, no. 7198/04, § 41, 27 July 2006, and Moretti
and Benedetti v. Italy, no. 16318/07, § 27, ECHR
2010 ... (extracts)).
In
so far as is relevant, Article 8 of the Convention provides as
follows:
“1. Everyone has the right to respect
for his ... family life... .
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
1. Compatibility ratione
personae
The
Italian Government argued that the application, in so far as it
related to the second applicant, was incompatible ratione personae
with the Convention within the meaning of Article 35 §§ 3
(a) and 4 of the Convention. In that regard the Italian Government
argued that the present case essentially concerned a conflict between
the second applicant’s two parents, and since both parents in
principle have a right to respect for family life together with their
son, allowing only one of the parents (in this case the mother) to
represent the child’s interests before the Court would disrupt
this parental equality. The Government furthermore referred to
Moretti and Benedetti, (cited above, § 32), and S.D.,
D.P. and A.T. v. the United Kingdom
(no. 23715/94, Commission decision of 20 May 1996, unreported)
and indicated the possibility that a conflict of interests might
exist, in particular considering that on 5 June 2006 the Rome Youth
Court had granted interim sole custody
to Marko’s father (see paragraph 15 above).
The
applicants argued that what was at stake were the interests of the
child, the second applicant, as opposed to the interests of his
father. Given the paramount importance of the interests of the child,
there was no other choice than to have him as a party to the case
before the Court.
The
Latvian Government disagreed with the objection of the Italian
Government. They referred to the Court’s statement in Iosub
Caras, (cited above, § 21) that
“minors can apply to the Court even, or indeed
especially, if they are represented by a parent who is in conflict
with the authorities and criticises their decisions and conduct as
not being consistent with the rights guaranteed by the Convention. In
such cases, the standing as the natural parent suffices to afford him
or her the necessary power to apply to the Court on the child’s
behalf, too, in order to protect the child’s interests.”
They furthermore
indicated that, since the proceedings in Italy had concerned an order
to separate the first and second applicants, it was clear that what
was being criticised were decisions inconsistent with Article 8 of
the Convention (a reference was made to Neulinger and Shuruk
v. Switzerland [GC], no. 41615/07, § 90, ECHR 2010 ...,
and Iosub Caras, cited above, § 29).
The
Court observes in the first place that both of the cases referred to
by the Italian Government referred to the representation of a child
not by their natural parent but instead by individuals not related to
the children in question. However, even in such circumstances the
Commission and the Court were careful to point out that a restrictive
or technical approach in the area of representation of children
before the Court was to be avoided. The Court cannot but agree with
the Latvian Government that the facts in the present case are more
reminiscent of those of the above-cited Iosub Caras and
Neulinger and Shuruk. The Court does not see any reason to
depart from the line of reasoning used in those cases. Therefore, the
Italian Government’s argument concerning the incompatibility
ratione personae must be rejected.
2. Exhaustion of domestic remedies
The
Italian Government noted that when the applicants first applied to
the Court the first applicant’s appeal against the decision of
the Rome Youth Court of 21 April 2008 were still pending. It was only
adjudicated upon on 28 September 2009. Therefore, the application had
to be declared inadmissible for non-exhaustion of domestic remedies
pursuant to Article 35 §§ 1 and 4 of the Convention.
The
applicants stated that they had a right to submit an application to
the Court without waiting for the final adjudication in the Italian
courts from the moment when the first applicant learned that Italy
had officially requested the Latvian authorities to ensure Marko’s
return to Italy, since such a request was of a self-executing nature
and was not subject to any additional review by the Latvian
authorities.
The
Latvian Government agreed with the applicants that, once the
non-appealable certificate of return had been issued pursuant to
Article 42 (1) of the Regulation, the applicants did not
have an obligation to wait for the completion of adjudication in the
Italian courts before petitioning the Court.
In
response to the applicants and the Latvian Government the Italian
Government emphasised that the concepts of “an enforceable
judgment” within the meaning of Article 42 of the Regulation,
and of a “final decision” within the meaning of Article
35 § 1 of the Convention, were not to be confused. The Italian
Government pointed out in particular that the Regulation specifically
stated that a certificate of return may be issued on the basis of a
judgment which has not yet become final.
The
Court observes that it is not in dispute between the parties that the
adjudication in the Italian courts has now been completed. In other
words, the Italian State has been afforded the opportunity of
preventing or redressing the violation alleged against them (see
Selmouni v. France [GC], no. 25803/94, § 74, ECHR
1999 V). The Court has previously held that in principle
applicants are obliged to make a diligent effort to exhaust the
domestic remedies before submitting an application to the Court.
However, it has been deemed acceptable if the final stage of the
exhaustion of the domestic remedies takes place after the application
has been submitted but before the Court decides on its admissibility
(see, for example, Yakup Köse v. Turkey (dec.), no.
50177/99, 2 May 2006). The Court thus dismisses the respondent
Government’s objection of non-exhaustion of domestic remedies.
3. Compliance with the six-month rule
In
the alternative, the respondent Government pointed out that if the
Court were to consider the Rome Youth Court decision of 21 April 2008
to be the final one, the application would be inadmissible according
to Article 35 §§ 1 and 4 of the Convention for failure
to comply with the six month rule.
The
applicants pointed out that it was only on 10 September 2008 that the
first applicant had learned that a return certificate had been issued
(see above, paragraph 34), which was therefore the date to be taken
into account for calculating the six-month period within the meaning
of Article 35 § 1 of the Convention.
In
response to the applicants’ argument, the respondent Government
submitted that the applicants could not allege that they only became
aware of the decision of 21 April 2008 after the return certificate
had been communicated to them, since their lawyer in Italy had
actively contested the decision of 21 April 2008. Since the
applicant’s representative in Italy had lodged an appeal
against the above-mentioned decision on 20 June 2008, that date was
the latest one from which to start counting the six-month period for
complaining to the Court.
The
Latvian Government pointed out that the measure that directly
interfered with the applicants’ family life was the return
certificate, which the applicants received on 10 September 2008.
Therefore, the time-limit for lodging an application with the Court
started to run on that date. In the alternative, the Latvian
Government argued that since the applicants were complaining about “a
consistent policy adopted by the Italian authorities in dealing with
their case”, their complaints in effect concerned a continuing
situation.
The
Court notes that the respondent Government correctly observed that at
the time the applicants lodged their application with the Court (on
9 March 2009), the proceedings were still pending before
the Italian courts and were completed only on 21 April 2009 (see
above, paragraph 37). Against that background, the Court dismisses
the Italian Government’s argument concerning the alleged
non-compliance with the six-month rule.
4. Conclusion
The
Court dismisses the respondent Government’s arguments
concerning alleged incompatibility ratione personae, failure
to exhaust the domestic remedies and failure to comply with the
six-month rule. The Court furthermore considers, in the light of the
parties’ submissions, that the applicants’ complaints
raise serious issues of fact and law under the Convention, the
determination of which requires an examination of the merits. The
Court concludes therefore that these complaints are not manifestly
ill-founded within the meaning of Article 35 § 3
of the Convention. No other ground for declaring these complaints
inadmissible has been established. The applicants’ complaints
of interference by the Italian authorities in their family life and
of the procedural unfairness of the decision-making process in the
Italian courts must therefore be declared admissible.
B. Merits
1. Submissions by the parties
(a) The applicants
The
applicants emphasised that there existed very close emotional links
between them. Marko’s father had not developed any emotional
link with the child because they had seen each other very rarely,
even when the applicants still resided in Italy. Furthermore, Marko
and his father did not have a common language. According to the
applicants, the first applicant has issued repeated invitations to
Marko’s father to visit his son in Rīga. He has not
responded to those invitations, which is just one of the many facts
that had not been taken into account by the Italian courts. Against
that background the applicants pointed out that if Marko were to be
separated from his mother it would threaten his development and
mental health. In this regard the applicants submitted that Marko was
receiving systematic assistance from a psychologist in order to
overcome the stress, anxiety and fear caused by the prospects of his
separation from his mother and his being sent to Italy.
The
applicants further submitted that when the Italian courts adopted
decisions diametrically opposite to those adopted by the Latvian
courts, they did not observe the principle of mutual trust between
courts. The allegedly inadequately reasoned decisions adopted by the
Italian courts furthermore did not take into account the available
information concerning Marko’s living arrangements in Latvia.
According
to the applicants, the arrangements for the first applicant’s
visits with her son envisaged by the Italian courts were utterly
inadequate, in particular taking into account the fact that she did
not have the financial means to reside in Italy, where she was
virtually unemployable since she did not speak any Italian.
Furthermore, the “safety measures” suggested by the
Italian authorities and accepted by the Italian courts did not
guarantee the child’s physical and psychological safety and
were in direct contradiction with the psychologist’s
conclusions relied on by the Latvian courts. The applicants further
pointed out that the Italian courts had failed to examine or to have
examined the proposed residence of the child in Italy. According to
the information available to the applicants, the building located at
the address mentioned by the Italian courts contained offices.
Lastly, the applicants criticised the Italian courts’ failure
to request and to take into account any information concerning
Marko’s father’s income and property in order to assess
whether he was capable of raising the child.
(b) The respondent Government
The
Italian Government submitted that there had been no interference with
the first applicant’s rights under Article 8, since she herself
was the one who had interfered with Marko’s father’s
right to family life (in this respect a reference was made to Gnahoré
v. France, no. 40031/98, § 59, ECHR 2000 IX), and
therefore could not argue that an interference arose as a result of
the Italian authorities’ legitimate but as yet unsuccessful
attempt to re-establish the previously existing situation, which had
been in full conformity with the law. In other words, the parent
whose actions had been contrary to the law (the respondent Government
observed that there was no dispute between the parties that Marko’s
removal from Italy had been wrongful) was not to be allowed to
benefit from those actions. In any case, the Italian authorities had
envisioned the possibility for the applicants’ meetings after
Marko’s return to Italy. The respondent Government furthermore
submitted that even if any interference with the applicants’
rights had taken place, it had been in accordance with the law,
namely, Article 11 of the Regulation, and it had also been necessary
to eliminate the consequences of Marko’s unlawful removal from
Italy. In other words, the aim of the interference had been the
protection of the rights and freedoms of the child.
As
concerns the question of whether ordering Marko’s return was
“necessary in a democratic society”, the respondent
Government submitted that the Italian authorities had duly taken into
account and weighed the best interests of the child. The Italian
Government considered that the applicants’ argument that Marko
and his father could not communicate because of a language barrier
was not appropriate as regards an eight-year-old child who has spent
a large portion of his life in Italy, where he should not encounter
any particular difficulties, in particular considering that both
Latvia and Italy were member states of the European Union. To
substantiate the argument that the alleged interference with the
applicants’ family life had been “necessary”, the
respondent Government once again referred to the guarantees offered
by the Italian authorities (see above, paragraph 28). Lastly, they
considered that the specific arrangements to be made in respect of
Marko fell within Italy’s margin of appreciation.
The
respondent Government furthermore referred to the object and purpose
of the Hague Convention within the meaning of Article 31 (1) of
the Vienna Convention on the Law of Treaties,
which, according to the Court’s judgment Maumousseau and
Washington v. France (no. 39388/05, § 69, ECHR 2007 XIII),
was the deterrence of the proliferation of international child
abductions. That goal could be achieved by avoiding the consolidation
of de facto situations brought about by wrongful removals of
children. For that purpose the status quo ante had to be
restored as quickly as possible. As to the applicability in the
present case of the exception to the general obligation to return a
wrongfully removed child that is contained in Article 13 (b) of
the Hague Convention, the respondent Government analysed three
possible justifications for non-return: firstly, the argument that
Marko had settled in Latvia and adapted to life there and that his
best interests required his continued residence with his mother;
secondly, the allegation that the father had not had any contact with
the child; and, thirdly, that because of the length of the Italian
procedures the return of Marko to Italy and the restoration of the
status quo ante was no longer possible.
Regarding
the question of Marko’s continued residence with his mother,
the respondent Government underlined the first applicant’s
refusal to act in accordance with the decisions of the Italian
courts. As to Marko’s father’s willingness to care for
his son, the respondent Government pointed out that apart from
short-lived disputes concerning child support payments, the father
had always showed willingness to enjoy a stable family life with his
son in Italy. The Government also underlined that the father was not
an alcoholic, a drug addict or otherwise unfit to raise a child.
Lastly, concerning the effect of the length of proceedings, the
respondent Government emphasised that the Italian courts had dealt
with the case in only ten months; therefore, the Italian authorities
could not be held responsible for the length of time that Marko had
spent away from his father.
In
so far as the procedural fairness of the decision-making in the
Italian courts was concerned, the respondent Government fully
endorsed the findings of the European Commission (see above,
paragraphs 39-45). More specifically, they pointed out that the
proceedings in the Italian courts had been fair and both parties had
been given an opportunity to make submissions to those courts,
irrespective of the fact that the submissions had been made in
writing. Furthermore, the first applicant had been represented by
counsel.
The
respondent Government sought to differentiate the facts forming the
background to the recent Grand Chamber judgment Neulinger and
Shuruk v. Switzerland (cited above, § 139) from the facts of
the present case in that the former concerned the motivation for a
refusal to return a child to the country of origin, while the present
case concerned proceedings in the country of origin, and its purpose
was not to justify the actions of the Latvian authorities.
(c) The third-party Government
The
Latvian Government relied on Neulinger and Shuruk and
criticised the Italian authorities’ failure to conduct an
in-depth examination of the entire family situation of the applicants
and Marko’s father. It was alleged that the Italian courts had
failed to take into account the fact that the first applicant was and
always had been Marko’s primary caregiver. Marko’s father
had had only random contact with his son even while the applicants
were still residing in Italy. Furthermore, Marko’s father had
not made any attempt to contact his son during the more than four
years that the applicants had been living in Latvia. In addition, it
was pointed out that Marko had lived in Latvia much longer than he
had resided in Italy. Lastly, the Italian courts had not assessed
Marko’s father’s capacity to raise a child on his own and
had not considered alternative solutions for ensuring their mutual
contact (in this regard the Latvian Government referred to Deak
v. Romania and the United Kingdom, no. 19055/05, § 69,
3 June 2008).
Concerning
the procedural fairness of the decision-making in the Italian courts,
the Latvian Government submitted that it was incorrect to rely on
Articles 23 (b) and 42 (2) (a) of the Regulation in
isolation, since those provisions had to be interpreted in harmony
with the relevant rules of international law, namely the UN
Convention and Article 8 of the Convention. This contextual
interpretation clearly led to the conclusion that the applicants’
procedural rights had been disregarded by the Italian courts.
2. Assessment of the Court
The
Court will deal separately with the applicant’s complaint about
the order for Marko’s return, and the complaint that the first
applicant was not present at the hearing of the Rome Youth Court on
21 April 2008.
(a) General principles
In
Neulinger and Shuruk (cited above, §§ 131-140, with
further references) the Court articulated and crystallised a number
of principles which have emerged from its case-law on the issue of
the international abduction of children, as follows.
(i) The
Convention cannot be interpreted in a vacuum, but, in accordance with
Article 31 § 3 (c) of the Vienna Convention on the Law of
Treaties (1969), account is to be taken of any relevant rules of
international law applicable to the Contracting Parties (see
Streletz, Kessler and Krenz v. Germany [GC], nos.
34044/96, 35532/97 and 44801/98, § 90, ECHR 2001 II).
(ii)
The positive obligations that Article 8 of the Convention
imposes on States with respect to reuniting parents with their
children must therefore be interpreted in the light of the UN
Convention and the Hague Convention (see Maire v. Portugal,
no. 48206/99, § 72, ECHR 2003 VII, and Ignaccolo-Zenide
v. Romania, no. 31679/96, § 95, ECHR 2000 I).
(iii) The Court is competent to review the procedure followed by the
domestic courts, in particular to ascertain whether those courts, in
applying and interpreting the provisions of the Hague Convention,
have secured the guarantees of the Convention and especially those of
Article 8 (see, to that effect, Bianchi v. Switzerland, no.
7548/04, § 92, 22 June 2006, and Carlson v. Switzerland,
no. 49492/06, § 73, 6 November 2008).
(iv) In this area the decisive issue is whether a fair balance
between the competing interests at stake – those of the child,
of the two parents, and of public order – has been struck,
within the margin of appreciation afforded to States in such matters
(see Maumousseau and Washington, cited above, § 62),
bearing in mind, however, that the child’s best interests must
be the primary consideration (see, to that effect, Gnahoré,
cited above, § 59).
(v)
“The child’s interests” are primarily considered to
be the following two: to have his or her ties with his or her family
maintained, unless it is proved that such ties are undesirable, and
to be allowed to develop in a sound environment (see, among many
other authorities, Elsholz v. Germany [GC], no. 25735/94, §
50, ECHR 2000 VIII, and Maršálek v. the Czech
Republic, no. 8153/04, § 71, 4 April 2006). The child’s
best interests, from a personal development perspective, will depend
on a variety of individual circumstances, in particular his age and
level of maturity, the presence or absence of his parents and his
environment and experiences.
(vi)
A child’s return cannot be ordered automatically or
mechanically when the Hague Convention is applicable, as is indicated
by the recognition in that instrument of a number of exceptions to
the obligation to return the child (see, in particular, Articles 12,
13 and 20), based on considerations concerning the actual person of
the child and his environment, thus showing that it is for the court
hearing the case to adopt an in concreto approach to it (see
Maumousseau and Washington, cited above, § 72).
(vii)
The task to assess those best interests in each individual case is
thus primarily one for the domestic authorities, which often have the
benefit of direct contact with the persons concerned. To that end
they enjoy a certain margin of appreciation, which remains subject,
however, to European supervision whereby the Court reviews under the
Convention the decisions that those authorities have taken in the
exercise of that power (see, for example, Hokkanen v. Finland,
23 September 1994, § 55, Series A no. 299 A, and
Kutzner v. Germany, no. 46544/99, §§ 65-66, ECHR
2002 I; see also Tiemann v. France and Germany (dec.),
nos. 47457/99 and 47458/99, ECHR 2000 IV; Bianchi, cited
above, § 92; and Carlson, cited above, § 69).
(vii) In
addition, the Court must ensure that the decision-making process
leading to the adoption of the impugned measures by the domestic
court was fair and allowed those concerned to present their case
fully (see Tiemann, cited above, and Eskinazi and Chelouche
v. Turkey (dec.), no. 14600/05, ECHR 2005 XIII
(extracts)). To that end the Court must ascertain whether the
domestic courts conducted an in-depth examination of the entire
family situation and of a whole series of factors, in particular of a
factual, emotional, psychological, material and medical nature, and
made a balanced and reasonable assessment of the respective interests
of each person, with constant concern for determining what the best
solution would be for the abducted child in the context of an
application for his return to his country of origin (see Maumousseau
and Washington, cited above, § 74).
The
Court will now apply those principles to the specific complaints
raised by the applicants.
(b) The order for the second applicant to
be returned to Italy
The
Court reiterates that the second applicant’s return to his
father in Italy was ordered by the Rome Youth Court decision of 21
April 2008 (see above, paragraph 28), which was upheld on appeal by
the decision of the Rome Court of Appeal adopted on 21 April 2009
(see above, paragraph 37). The return was ordered on the basis of
sub-paragraphs (4), (7) and (8) of Article 11 of the Regulation.
Article 11 refers to the procedure for the return of a wrongfully
removed child. That procedure is set out in Articles 12 and 13 of the
Hague Convention.
The
respondent Government have argued that there has been no interference
with the applicants’ family life (see above, paragraph 76). The
Court has previously found that an interference occurs where domestic
measures hinder the mutual enjoyment by a parent and a child of each
other’s company (see, for example, Raban v. Romania, no.
25437/08, § 31, 26 October 2010). In
the present case a psychologist, whose report was solicited by the
applicants’ representative, has confirmed that Marko is
suffering psychological stress and anxiety in connection with his
potential return to Italy (see above, paragraph 33). That cannot but
have a significant impact on the applicants’ enjoyment of their
family life. Furthermore, the Court has more than once found that an
order for return, even if it has not been enforced, in itself
constitutes an interference with the right to respect for family life
(see, for example, Neulinger and Shuruk, cited above,
§§ 90-91, and Lipkowsky and McCormack v. Germany
(dec.), no. 26755/10, 18 January 2011). In the present case
there are no reasons requiring a departure from that approach.
Accordingly, the Rome Youth Court’s order to return Marko to
Italy constituted an interference with the applicants’ right to
respect for family life.
Turning
to the question of whether the interference complained of was “in
accordance with the law” within the meaning of Article 8 §
2 of the Convention, the Court observes that in the present case the
parties have not disputed that the first applicant’s removal of
Marko from Italy was wrongful within the meaning of Article 3 of the
Hague Convention (compare with Neulinger and Shuruk, cited
above, §§ 99-105). Article 12 of the Hague Convention
requires the return of wrongfully removed children, subject to
exceptions set out in Article 13 of that Convention. In such
circumstances the Court does not doubt that the interference was
ordered in accordance with the law, namely Article 11 of the
Regulation in combination with Article 12 of the Hague Convention.
As
to the question of whether the order to return Marko to Italy pursued
one of the legitimate aims exhaustively listed in Article 8 § 2
of the Convention, the respondent Government advanced two theories:
that the interference was necessary to protect Marko’s father’s
right to respect for family life, or to safeguard the best interests
of the child. There is no real dispute between the parties that the
decision of the Italian courts to return Marko
to Italy pursued the legitimate aim of protecting the rights and
freedoms of the child and his father. Consequently, the Court accepts
that it was the case (see also Neulinger
and Shuruk, § 106).
The Court must therefore
determine whether the interference in question was “necessary
in a democratic society” within the meaning of Article 8 §
2 of the Convention, interpreted in the light of the above-mentioned
international instruments, the decisive issue being whether a fair
and proportionate balance between the competing interests at stake –
those of the child, of the two parents, and of public order –
was struck, within the margin of appreciation afforded to States in
such matters (see paragraph 85 above, (iv)).
In
that regard the Court emphasises that it is not its task to take the
place of the competent authorities in examining whether there would
be a grave risk that Marko would be exposed to psychological or
physical harm, within the meaning of Article 13 of the Hague
Convention, if he returned to Italy. However,
the Court is competent to ascertain whether the Italian courts, in
applying and interpreting the provisions of that Convention and of
the Regulation, secured the guarantees set forth in Article 8 of the
Convention, particularly taking into account the child’s best
interests (see Neulinger and Shuruk,
cited above, § 141). It
is essential also to keep in mind that the
Hague Convention is essentially an instrument of a procedural nature
and not a human rights treaty protecting individuals on an objective
basis (see Neulinger and Shuruk,
cited above, § 145).
The
Court cannot but observe that the reasoning contained in the Italian
courts’ decisions of 21 April 2008 (see above, paragraph 28)
and 21 April 2009 (see above, paragraph 37) was rather scant
(see also the opinion of the European Commission, above,
paragraph 45). Even if the Court accepted the Italian courts’
theory that their role was limited by Article 11 (4) of the
Regulation to assessing whether adequate arrangements had been made
to secure Marko’s protection after his return to Italy from any
identified risks within the meaning of Article 13 (b) of the
Hague Convention, it cannot fail to observe that the Italian courts
in their decisions failed to address any risks that had been
identified by the Latvian authorities. Thus, for example, the
conclusions contained in the Rīga Custody Court’s report
(see above, paragraph 18), the expert psychologist’s report
(see above, paragraph 19) and the Rīga City Vidzeme District
Court’s decision of 11 April 2007 (see above, paragraph 22)
were not explicitly mentioned in either of the two decisions. It is
therefore necessary to verify whether the arrangements for Marko’s
protection listed in the Italian courts’ decisions can be in
any case considered to have reasonably been taken into account his
best interests.
The
measures proposed by Marko’s father and subsequently accepted
as adequate by two levels of Italian courts are summarised in
paragraph 28 above. The considerations identified by the Latvian
authorities were that the child was well adjusted to living with his
mother in Rīga (paragraph 18), that his separation from his
mother would adversely affect his development and might create
neurotic problems, illnesses or both (paragraph 19), and that strong
ties had formed between Marko and his mother (paragraph 22). In
addition, in their observations before this Court the applicants
indicated that the first applicant was unable to accompany the child
to Italy, since she did not have sufficient financial means to reside
there and was essentially unemployable, since she did not know any
Italian, and that the child and his father had no language in common,
had never lived together without the mother, and had not seen each
other for more than three years at the time when the Rome Court of
Appeal dismissed the first applicant’s appeal against the
decision of 21 April 2008 (see also Neulinger
and Shuruk, cited above, § 150).
The Latvian judicial authorities in their decisions also found that
it was financially unfeasible for the first applicant to return to
Italy (the Rīga City Vidzeme District Court decision of 11 April
2007, see above, paragraph 22), confirmed that Marko’s father
had not seen his son since 2006 (the Custody Court’s opinion of
8 January 2008, see above, paragraph 24) and had made no effort to
establish contact with Marko in the meantime (the Rīga Regional
Court decision of 24 May 2007, see above, paragraph 23).
The
Italian courts did not refer to the two psychologists’ reports
that had been drawn up in Latvia pursuant to requests from the
applicants’ representative and then relied upon by the Latvian
courts. Neither did the Italian courts refer to the potential dangers
to Marko’s psychological health that had been identified in
those reports. Had those courts considered the reports unreliable,
they certainly had the opportunity to request a report from a
psychologist of their own choosing. However, that was not done
either. As to the residence that Marko’s father proposed as his
accommodation after his return to Italy, no effort was made by any
Italian authorities to establish whether it was suitable as a home
for a young child. The house was not inspected, either by the courts
or by another person of their choosing. Those conditions, taken
cumulatively, leave the Court unpersuaded that the Italian courts
sufficiently appreciated the seriousness of the
difficulties which Marko was likely to encounter in Italy (see
Neulinger and Shuruk,
cited above, § 146, with further references).
As
to the adequacy of the “safeguards” of Marko’s
well-being proposed by his father and accepted by the Italian courts
as adequate, the Court considers that allowing the first applicant to
stay with the child for fifteen to thirty days during the first year
and then for one summer month every other year after that is a
manifestly inappropriate response to the psychological trauma that
would inevitably follow a sudden and irreversible severance of the
close ties between mother and child. In the opinion of the Court, the
order to drastically immerse a child in a linguistically and
culturally foreign environment cannot in any way be compensated by
attending a kindergarten, a swimming pool and Russian-language
classes. While the father’s undertaking to ensure that Marko
receives adequate psychological support is indeed laudable, the Court
cannot agree that such an external support could ever be considered
as an equivalent alternative to psychological support that is
intrinsic to strong, stable and undisturbed ties between a child and
his mother.
Lastly,
the Court observes, with the third-party Government, that the Italian
courts had not considered any alternative solutions for
ensuring contact between Marko and his father.
For
these reasons the Court concludes that the interference with the
applicants’ right to respect for their family life was not
“necessary in a democratic society” within the meaning of
Article 8 § 2 of the Convention. There has accordingly been a
violation of Article 8 of the Convention on the account of the
Italian courts’ order for Marko’s return to Italy.
(c) The procedural fairness of the
decision-making in the Rome Youth Court
So
far as the fairness of the Italian decision-making process is
concerned the applicants considered that the first applicant’s
absence from the hearing of the Rome Youth
Court rendered it unfair and did not afford due respect to the
interests safeguarded by Article 8 (see, inter
alia, Iosub
Caras v. Romania, cited above, §
41).
The
Court finds that the procedural equality between the parties to the
case was observed so far as the observance of the applicants’
interests under Article 8 was concerned. The decisive procedural
issue in the present case is whether the authorities charged with
decision-making were placed in a position to duly respect and give
force to the parties’ rights under Article 8. Taking into
account that both Marko’s father and the first applicant
submitted, with the aid of counsel, detailed written statements to
two levels of Italian courts, the Court is satisfied that the
procedural fairness requirement of Article 8 has been observed (see
also the conclusions of the European Commission, above, paragraph
43). So far as the adequacy of those courts’ reaction to the
arguments submitted by the applicants is concerned, the Court refers
to its conclusions above.
Accordingly
there has been no violation of Article 8 on account of the first
applicant’s absence from the hearing of
the Rome Youth Court.
II. OTHER COMPLAINTS
The
applicants also complained under Article 6 § 1 of the Convention
about the length and unfairness of the first set of proceedings in
the Italian courts and about the fact that Marko was not heard in
person by any Italian courts.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicants claimed EUR 10,000 in respect of non-pecuniary damage,
approximately EUR 10 for each day of anxiety since the applicants
first learned of Marko’s father’s request for Marko to be
returned to Italy.
The
respondent Government argued that the applicant had not submitted
itemised particulars of that claim, as required by Rule 60 § 2
of the Rules of the Court.
The
Court notes that the applicants have adequately explained the method
used for arriving at the amount claimed in respect of non-pecuniary
damage. In the light of the fact that the applicants must have
demonstrated a clear link between the violation of Article 8 found by
the Court and the non pecuniary damage caused by the return
order, the Court awards the applicants jointly EUR 10,000 in
respect of non-pecuniary damage.
B. Costs and expenses
In
respect of costs and expenses, the applicants claimed a total amount
of EUR 13,610.69, calculated as follows: EUR 171 for the two
psychological examinations of the second applicant, EUR 643 for
translations of the documents sent by the Court, EUR 10,500 in legal
fees for the first applicant’s representation in the Italian
courts, EUR 1,815 for the applicants’ representation
before the Court, EUR 371 for family psychotherapy for the
applicants and EUR 110.69 for postal expenses.
The
respondent Government argued that the applicant had not submitted
itemised particulars of that claim, as required by Rule 60 § 2
of the Rules of the Court. Furthermore, the applicants had not
specified which documents from the Court had needed to be translated.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award to the applicants jointly the sum of
EUR 5,000 covering costs under all heads.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Dismisses by a majority the respondent Government’s
objection of non-exhaustion of domestic remedies;
Declares by a majority the complaints
concerning the order to return the second applicant to his father in
Italy and about the first applicant’s absence from the hearing
of the Rome Youth Court admissible;
Declares unanimously the remainder of the
application inadmissible;
Holds by six votes to one that there has been a
violation of Article 8 of the Convention on account of the
Italian courts’ order for the second applicant to be returned
to Italy;
Holds unanimously that there has been no
violation of Article 8 of the Convention on account of the first
applicant’s absence from the hearing of
the Rome Youth Court;
Holds by six votes to one
(a) that
the respondent State is to pay the applicants, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
10,000 (ten thousand euros) jointly to the applicants, plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
5,000 (five thousand euros) jointly to the applicants, plus any tax
that may be chargeable to the applicants, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period, plus three percentage points;
Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 12 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Popović
is annexed to this judgment.
F.T.
S.H.N.
Dissenting opinion of Judge Popović
I
find the application to be inadmissible in
terms of Article 35 § 1 of the
Convention, because, by failing to file a complaint with the
Cassation Court, the applicants did not exhaust domestic remedies.
