In the case of Anghel v. Italy,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Danutė Jočienė, President,
Guido Raimondi,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Işıl Karakaş,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 4 June 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
5968/09) 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 a Romanian national, Mr Aurelian Anghel (“the
applicant”), on 24 January 2009.
The applicant was represented by Mr G. Klein Kiriţescu,
a lawyer practising in Bucharest. The Italian Government (“the Government”)
were represented by their Co-Agent, Mrs P. Accardo.
The applicant alleged that Hague Convention proceedings
in respect of his son had been unfair and that the court dealing with the
matter had failed to take into account the best interests of the son. Moreover,
he had been denied access to an appeal against the first-instance decision. He
considered that there had been a violation of Articles 6 and 8 of the
Convention.
On 14 December 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
The Government of Romania,
who had been notified by the Registrar of their right to intervene in the
proceedings (Article 48 (b) of the Convention
and Rule 33 § 3 (b)), did not indicate that they intended to do so.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1961 and currently lives
in Qatar. He was married to M. and they had a son, A., born in March 2003 in Bucharest, Romania.
A. Background
Following A.’s birth, M. occasionally worked in Italy for short periods of time, in order to ensure an income for the family. In 2005,
after M. had obtained a regular job, the applicant agreed for A. to travel to Italy with his mother. A formal notarial deed of 26 April 2005, submitted to the Court,
states that Mr Anghel Aurelian, residing in Bucharest, gave his consent that
his under-age son, Anghel A., born in March 2003, residing at the above-mentioned
address, travel to the Republic of Moldova and Italy, in the course of the year
2005, accompanied by his mother, Anghel M. The applicant submitted
that such agreement had only been given for a limited period of time in order
to allow ongoing contact with M. The case file shows that M. challenged this
statement, alleging that she had taken the child with her because of the
adverse effect that living with his father was having on A.’s development.
In January 2006 the applicant travelled to Italy in order to bring A. back to Romania. He claimed that he had found the child living in very
poor conditions. M. had resisted the applicant’s requests to take the child
back to Romania or alternatively for all of them to move to Qatar, where he had found a job.
Once the applicant had returned to Romania, he filed a criminal complaint under Article 301 of the Romanian Criminal Code, alleging
that his wife was detaining A. in Italy without his consent.
On an unspecified date, the applicant moved to Qatar. On 6 December 2006 he travelled to Italy to visit his son. He alleged that
A.’s health and social conditions had worsened. On 13 December 2006
father and son travelled together to Romania. On 8 January 2007 M.
joined them. On 15 January 2007 they all travelled to Moldova to pay a visit to M.’s family. On 20 January 2007, M. and A. “disappeared”. The
applicant eventually found out that they had returned to Italy.
On 9 February 2007, the Romanian Prosecutor General’s
Office decided not to institute criminal proceedings against M., as there was insufficient
evidence to establish a punishable offence. The applicant contested the afore-mentioned
decision on 28 December 2007. It appears that a district court dismissed the
challenge as unfounded on 31 March 2008. The applicant filed an appeal
with a higher court. No further information has been provided in relation to
these proceedings.
B. The petition for return of the child under the
Hague Convention and the decision of the Bologna Youth Court
On 2 April 2007 the applicant applied to the
Minister of Justice, designated by Romania as the Central Authority responsible
for discharging the duties imposed on Romania by the Hague Convention of 25
October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). He
asked the Minister to assist him in securing the return of his son, whom the child’s
mother had, he alleged, wrongfully removed to Italy on 20 January 2007.
Following the steps undertaken by the Romanian
and Italian authorities in accordance with the provisions of the Hague
Convention, the Bologna Prosecutor’s Office initiated return proceedings before
the Bologna Youth Court (Tribunale per i minorenni).
On 18 June 2007 a hearing took place
in the applicant’s presence.
The following appears from the hand-written procès-verbal
submitted by the Government.
Following statements by the applicant and M., the president of
the court noted the existence of divorce proceedings brought by M. in Romania,
together with an application for custody of the child (objected to by the
applicant), which were still pending. He further noted that while the couple
had cohabited from 2004 until the end of 2006, the applicant had often been
absent during 2006 as he had been working in Qatar.
M. submitted that until the end of 2006 the parents had been in
agreement on the whereabouts of the child, particularly in view of her
employment in Italy and the fact that the child had obtained a residence permit
there, started attending school and was being seen by the social and community
health services. M. argued that according to changes in Romanian law she had not
needed to extend the [validity of the] notarial deed (mentioned above) to
subsequent years. She claimed that the child had previously had health problems
and that his father had always known where they were. M. asked the court to
admit in evidence a psychologist’s report on the child’s conditions and
submitted written pleadings accompanied by evidence substantiating her claim.
The applicant submitted that the notarial deed between him and
M. had only given consent to A. travelling to Italy for tourist purposes for
the period May-December 2005 and thus he had not consented to the child’s
removal after that. In the absence of a custody decision the child could have
lived with him in Qatar, instead of in Italy with his mother without his
consent. However, M. had failed to consent to this, despite the fact that he
could give the child a better standard of living. He explained that he had
tried to reach a friendly settlement, but when this had appeared impossible he had
pressed charges against M. and those proceedings were still pending. Only at
the end of 2006 had M. agreed to take the child back to Romania following a medical visit, which the applicant had insisted upon and which had found that
the child was in poor health.
The Public Prosecutor asked the court to accept the return application,
noting that the child had possibly been in Italy for more than a year and
making reference to Article 17 (sic) of the Hague Convention. He further
asked the court to order a report on the child’s psychological condition.
On 5 July 2007 the applicant wrote to the
Romanian Minister of Justice, informing him of the conduct of the hearing. The
applicant explained that he had not been given the opportunity to challenge the
statements made by his wife’s attorney, in particular regarding: (i) the time
it had taken the applicant to institute proceedings after the date of the
wrongful removal or retention of the child, which according to the applicant had
been 20 January 2007 and not - as the court had assumed - January
2006; the result of the court using the latter date was that Article 12 of the
Hague Convention came into play, to the effect that after a period of one year
a child may not be returned if he has integrated into society; (ii) the
contention that the child’s health and psychological problems were imputable to
the time he had spent with his father before moving to Italy, which finding had
been based on medical documents to which the applicant had had no access; (iii)
the allegation that M. had had his consent up to 1 January 2007, the date on
which such consent was no longer necessary (Romania having joined the European
Union), thus ignoring the notarial deed, which had stated a specific period of
consent; and (iv) the fact that M. had changed their son’s residence without his
father’s consent, as required by law. The applicant further explained that the
Bologna Youth Court was considering custody issues in violation of its
competence under the Hague Convention, custody issues being within the exclusive
competence of the courts of the country of domicile, Romania. It would,
moreover, not decide the case until the Romanian courts had made a decision in
the divorce and custody proceedings. He further contested the evaluation of the
potential harm for the child in the event of his return to Romania which had
been made by the social services, stating that it had only made reference to
the biased account of the child’s mother, without any direct evaluation of the
relationship between father and son and of the social environment if A. were to
live in Romania. The applicant asked the Minister to forward his letter to the
competent authority in Italy and to the Bologna Youth Court.
By a decision of 6 July 2007, filed
with the court registry on 9 July 2007, the Bologna Youth Court
refused the application for return. It noted that divorce and custody
proceedings were still pending in Romania; that M. had claimed that she and the
child had lived in Italy since 2006; and that since June 2006 A. had been known
to the Infant Neuropsychiatric Services (“NPI”) of the Parma Local Health
Agency (“AUSL”). Moreover, it noted that M. had claimed to have had the
required permission from her husband to keep the child in Italy in accordance
with a notarial deed of 2005 and that the applicant had contested this on the
basis that he had only given permission for A. to travel to Italy for tourist
purposes, and that, albeit he had moved to Qatar in 2006, he wanted the child
to be with him. In that light, the court considered that there were no grounds
for returning A. and that, in view of the relevant international law, it could
not be held that the mother had arbitrarily taken A. away from his father as
legitimate custodian of the child. The Bologna Youth Court noted that the
Romanian authorities had not yet taken a decision on custody, thus the parents
had joint custody, and therefore the applicant did not have exclusive custody
rights. Moreover, the applicant had consented to A.’s transfer to Italy and had eventually moved to Qatar. Furthermore, the Bologna Youth Court observed that the
child had been in Italy for more than a year and was integrated into Italian
society, albeit with some problems. In this light, the court considered that psychological
harm would ensue as a result of his return. Thus it was not obliged, according
to Article 13 of the Hague Convention, to order his return. Indeed, from the
social services report ordered by the court, it appeared that A. had arrived at
the NPI’s premises, accompanied by his mother, on the advice of his general
practitioner and that since then A. had been subject to psychotherapy which
included joint interviews with his mother. The doctor entrusted with the report
had noted that the need for A.’s psychotherapeutic treatment was due to early
and prolonged periods of separation from his parents, frequent changes of residence,
and continuous parental conflict. It was therefore necessary to give A.
reference points and daily routines. Overall, his psychological condition had
been improving, save for a worrying regression following his return from Romania and Moldova in January 2007, from which he had recovered.
The decision was notified to the Public Prosecutor on 13 August
2007.
C. The steps taken by the applicant to contest the
decision
On 25 July 2007 the Italian authorities
informed the Romanian authorities about the Bologna Youth Court’s decision of
6 July 2007, filed with the court registry on 9 July 2007.
On 30 July 2007 the Romanian Ministry
of Justice informed the applicant of the decision and told him that it had also
requested information from the Italian Ministry of Justice about the available
remedies with which to challenge the decision.
By letter of 6 August 2007, the
Italian Ministry of Justice informed the Romanian Ministry of Justice that the
decision could be appealed against through an appeal on points of law to the
Court of Cassation, to be lodged within sixty days of the date of the decision
- if such rejection was pronounced during a hearing at which the requesting
party was present (according to Law no. 64 of 1994) - through an advocate
qualified to plead before that court. Alternatively, he could bring an action
in accordance with Article 11 of EC Regulation 2201/2003 (“Brussels II bis”).
The following day, the Romanian Ministry of
Justice informed the applicant of the above and that it had requested further
information on the final date to lodge the appeal on points of law and on the
applicant’s ability to obtain legal aid.
The applicant repeatedly contacted the Romanian
Ministry of Justice to obtain the response to those queries, together with the
documents which would have allowed him to appeal.
On 13 September 2007 the Romanian
Ministry of Justice forwarded to its Italian counterpart the applicant’s application
for legal aid in order to file an appeal on points of law. The application for
legal aid was filed on 25 October 2007.
On 29 October 2007 the Council of the Bologna
Bar Association granted the applicant legal aid to file an appeal, indicating
the Bologna Court of Appeal as the competent court and not the Court of
Cassation. It further noted that it was not sure that an appeal was still
possible - it being unknown whether the decision had been served, the relevant
time-limit could not be calculated. On 30 October 2007 the decision
was sent to the Italian Ministry of Justice.
By letter of 8 November 2007, the
applicant was informed by the Italian authorities that his application had been
received on 16 October 2007 and forwarded to the Council of the Bologna
Bar Association. No mention was made of the decision of
29 October 2007.
According to the documents produced, on
22 November 2007 the decision granting the applicant legal aid was
forwarded to the Romanian Ministry of Justice, together with an invitation to
inform the applicant, as well as to adduce proof that he had received the
decision. It is unknown whether this notification ever reached the Romanian Ministry
of Justice, and the information was not transferred to the applicant.
On 13 December 2007 upon the applicant’s
complaint that he had not been informed of any decision on his application, the
Romanian Ministry of Justice urged the Italian authorities to provide an
answer.
In the absence of a reply, on
3 January 2008 the applicant sent an e-mail to the Romanian Consulate
in Rome asking for support in obtaining information on the matter. By letter of
17 January 2008, the General Division of Consular Affairs of the
Romanian Ministry of Foreign Affairs informed the applicant that a favourable
decision on his application had been taken on 29 October 2007 and that it had
been communicated to the Romanian Ministry of Justice on
22 November 2007.
On 27 January the applicant wrote to the
Romanian Consulate again confirming that to date he had not received a copy of
the decision and asking it to ascertain who had sent it on behalf of Italy and
who had received it at the Romanian Ministry. On 28 January 2008 the Division
of Consular Relations forwarded a copy of the correspondence pertaining to his
file to the applicant.
On 15 February 2008 the Italian
Ministry of Justice asked the Council of the Bologna Bar Association to
provide, urgently, a list of the advocates qualified to plead the applicant’s
appeal within the legal aid scheme. On 19 March 2008 such a list was sent
by the Italian authorities to the Romanian Ministry of Justice, which forwarded
it to the applicant on 24 April 2008. On 6 May 2008 the
applicant wrote to the Italian Ministry of Justice and to the Council of the Bologna
Bar Association indicating his choice.
On 16 June 2008 the appointed legal aid lawyer
(MCA) made a request to the registry of the Bologna Youth Court to view the
relevant files. By letter dated 23 June 2008, addressed to the applicant and
the Italian and Romanian authorities (apparently faxed on 2 or 8 July 2008 to
the Italian authorities, receipt date for all recipients unknown), MCA
indicated that she was not in a position to represent the applicant as she was
not qualified to plead before the Court of Cassation and, contrary to the
indication given by the Council of the Bologna Bar Association, the only
available remedy was an appeal to the Court of Cassation under Article 7 of Law
no. 64 of 15 January 1994, such appeal to be lodged within sixty days
of notification. She also mentioned that, as it did not appear that the applicant
had been notified of the impugned decision, the time-limit to appeal in his
case would expire one year and forty-five days after the date of the lodging of
the decision with the court registry and, therefore, she advised the applicant
to appoint an advocate qualified to plead before the Court of Cassation as soon
as possible in order to be able to file the appeal.
On 15 July 2008, the applicant wrote
to the Council of the Bologna Bar Association asking for a list of advocates
qualified to plead in cassation proceedings. On 23 July 2008, the
applicant received such a list by e-mail and replied indicating the name of his
chosen lawyer.
On 12 August 2008, the applicant wrote
again to the Council of the Bologna Bar Association requesting further contact
details (telephone numbers and e-mail address) for his chosen lawyer. He
alleged that the information contained in the list was inaccurate and that he
had not been able to establish any contact with the lawyer. No reply was
received.
The applicant eventually obtained the relevant
information from personal contacts and on 23 September 2008, he wrote
an e-mail to the lawyer, explaining the situation, and asking whether she had
been informed of her appointment. The same day, the lawyer replied stating that
she had not been informed and requesting the case documents and a copy of the
decision granting legal aid, in order for her to decide whether to take up the
appointment. The day after, the applicant reached the lawyer by phone and
replied to her by e-mail, giving the information and documents requested.
On 25 September 2008 the lawyer
informed the applicant that the time-limit of one year and forty-five days to
appeal against the decision of 6 July 2007 had expired and that,
consequently, she was not in a position to assist him.
II. RELEVANT DOMESTIC LAW
A. Notification and time-limits
According to Article 7 of Law no. 64 of 1994, an
appeal against a decree of a Youth Court regarding the repatriation of a minor
is to be lodged with the Court of Cassation.
According to Article 325 of the Code of Civil
Procedure (“CCP”), as applicable at the time of the facts of the present case,
an appeal to the Court of Cassation was to be lodged within sixty days of
notification. In so far as relevant, according to Article 326 of the CCP the
time-limit mentioned in Article 325 starts to run from the day on which the
decision is served/notified. According to Article 327 of the CCP, as applicable
at the time of the present case, in the event that the decision was not
served/notified, the appeal is required to be introduced not later than a year
from the filing of the decision in the relevant court registry.
Article 1 of Law no. 742 of 7 October 1969
regarding the suspension of time-limits during holiday periods reads as
follows:
“Time-limits for ordinary and administrative proceedings are
legally suspended from 1 August to 15 September of every year and start to run again
at the end of the suspension period. Where the time-limit is to start to run
during a holiday period, the relevant time-limit shall start to run from the
end of that holiday period.”
According to Italian jurisprudence (see for
example Court of Cassation judgment no. 25702 of 9 December 2009), when, after a
first suspension, the original term has not entirely come to an end before the
start of a new holiday period, a double computation of the suspension is
applied.
Article 3 of Law no. 742 of 7 October 1969 reads as follows:
“In civil matters, Article 1 does not apply to causes and
proceedings mentioned in Article 92 of Law no. 12 (1941) on the judicial system
and controversies arising under Article 409 (labour cases) and 442 (welfare
benefits) of the Code of Civil Procedure.”
Article 92 of Law no. 12 (1941) reads as follows:
“During the holiday period courts of appeal and ordinary courts
deal with cases regarding alimony/maintenance, labour law, interim measures,
adoptions, temporary interdiction, interdiction, incapacitation, restraining orders
for protection against a family member, eviction and oppositions to
enforcement, bankruptcy, and other cases in respect of which a delay could
cause prejudice to the parties in the proceedings. In the latter case, a
declaration of urgency is made by the president at the bottom of the
application, by final decree, and for causes already being heard by order of a judge.”
According to Court of Cassation judgments no. 28 of 5 January
1996 and no. 2946 of 20 March 1998, the suspension of time-limits for holiday
periods applies to both adoption and paternity proceedings before a Youth
Court.
B. Legal aid
Legal aid is provided for by Law no. 115 of 30
May 2002. The relevant Articles read as follows:
Article 75
“(2) Free legal assistance is also available in respect of
civil, administrative, fiscal and tax proceedings, as well as matters related
to voluntary jurisdiction, for the defence of a poor citizen when the claims at
issue are not manifestly ill-founded.”
Article 124
“An application [for legal aid] must be submitted to the Council
of the Bar Association by the applicant or his lawyer, by means of a registered
letter.
The competent Council of the Bar Association is that of the place
within which the magistrate of the pending case has his or her seat. If the
proceedings are not pending, it is that of the place holding the seat of the
magistrate competent to hear the case on the merits. In the event that it
relates to the Court of Cassation, the Supreme Administrative Court, or (...)
the Court of Auditors, the competent Council of the Bar Association is that of
the seat of the magistrate who has delivered the impugned decision.”
C. International instruments and domestic law relevant
to the circumstances of the case
The relevant articles of the Hague Convention of
25 October 1980 on the Civil Aspects of International Child Abduction, ratified
by Romania and Italy, read 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 8
“Any person, institution or other body claiming
that a child has been removed or retained in breach of custody rights may apply
either to the Central Authority of the child’s habitual residence or to the
Central Authority of any other Contracting State for assistance in securing the
return of the child. [...].”
Article 9
“If the Central Authority which receives an
application referred to in Article 8 has reason to believe that the child is in
another Contracting State, it shall directly and without delay transmit the
application to the Central Authority of that Contracting State and inform the
requesting Central Authority, or 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 17
“The sole fact that a decision relating to
custody has been given in or is entitled to recognition in the requested State
shall not be a ground for refusing to return a child under this Convention, but
the judicial or administrative authorities of the requested State may take
account of the reasons for that decision in applying this Convention.”
Article 29
“This Convention shall not preclude any person,
institution or body who claims that there has been a breach of custody or
access rights within the meaning of Article 3 or 21 from applying directly to
the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.”
The provisions of the Hague Convention are
enforceable in the Italian courts by virtue of Law no. 64 of 15 January 1994.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE
CONVENTION
The applicant complained that his right to
appeal against the decision of the Bologna Youth Court had been impaired by the
delays in granting him legal aid, denying him an effective remedy as required
by Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
The Government contested that argument.
The Court reiterates that the role of Article 6
§ 1 in relation to Article 13 is that of a lex specialis, the
requirements of Article 13 being absorbed by the more stringent requirements of
Article 6 § 1 (see, for example, Société Anonyme Thaleia Karydi Axte v.
Greece, no. 44769/07, § 29, 5 November 2009). In this light, the Court
will examine this complaint under Article 6 § 1 of the Convention, which in so
far as relevant reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair hearing within a reasonable time by an
independent and impartial tribunal established by law.”
A. Admissibility
The Court notes that the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant submitted that at the relevant
time he had not had concrete information about the whereabouts of his son and the
child’s mother or enough knowledge of Italian law to institute proceedings
under Article 29 of the Hague Convention. In this light, he had availed himself
of the procedure established by Articles 7-9 of the Hague Convention, whereby
proceedings could be brought through the relevant Central Authority. In those
proceedings, he had been the aggrieved party - despite the fact that it had
been the Prosecutor’s Office which had brought the proceedings, as required by
the Hague Convention. However, the faults in the legal aid system in his case
had denied him the right to appeal against the decision of the Youth Court by
which it had refused to order the return of his son.
He highlighted that he had only been made aware
that he had been granted legal aid in February 2008, with the help of the
Romanian authorities and after incessant requests for information on his part.
He further noted that while it was true that MCA (who had been included in the
list of lawyers proposed by the Government) had obtained copies of the file on
16 June 2008, she had informed him on 2 July 2008 that she was unable to
represent him, as she was not qualified to plead before the Court of Cassation.
Indeed, because of the Italian authorities’ delays and errors, he had not
actually managed to obtain representation until July 2008. The applicant further
complained of contradictory and incomplete information having been given to him
throughout, which had ultimately denied him access to an appeal process.
The Government noted that the proceedings at
issue had been instituted by the Prosecutor’s Office under Article 7 of the
Hague Convention, and not by the applicant, who could have brought proceedings himself
under Article 29 of the Convention. Thus, the relevant decision had only been
notified to the parties to the proceedings, namely the Prosecutor’s Office.
Given that the applicant had not been notified, the time-limit for him to lodge
an appeal had been longer, namely one year from its publication and an
additional ninety days as a result of holiday suspension periods. In this
light, the Government confirmed that the time-limit for appealing against the
decision of 6 July 2007, filed with the court’s registry on 9 July 2007,
had been 9 October 2008.
They further submitted that the Romanian
authorities had been informed of the Bologna Youth Court’s decision promptly,
namely on 25 July 2007, as confirmed by a fax (submitted to the Court) of
30 July 2007 from the Romanian authorities making reference to the
receipt of that information and another fax of 6 August 2007. Moreover, a
decision on the applicant’s legal aid application (submitted on 25 October
2007) had been taken on 29 October 2007 and by 16 June 2008 MCA had been
appointed legal aid lawyer and had made a request to the registry of the
Bologna Youth Court to view the relevant files. The Government submitted that
given that the applicant had been informed promptly, he had had ample time to
find a lawyer and despite any misunderstanding about the relevant remedy and
competent court, he had had the opportunity to challenge the decision at issue,
and it could not be said that he had been denied the opportunity to appeal.
2. The Court’s assessment
(a) General principles
The Court reiterates that Article 6 of the
Convention does not compel the Contracting States to set up courts of appeal.
However, where such courts do exist, the requirements of Article 6 must be
complied with, so as for instance to guarantee to litigants an effective right
of access to court for the determination of their “civil rights and
obligations”. The “right to a court”, of which the right of access is one
aspect, is not absolute; it is subject to limitations permitted by implication,
in particular where the conditions of admissibility of an appeal are concerned,
since by its very nature it calls for regulation by the State, which enjoys a
certain margin of appreciation in this regard. However, these limitations must
not restrict or reduce a person’s access in such a way or to such an extent
that the very essence of the right is impaired (see Mikulová v. Slovakia, no. 64001/00, § 52, 6 December 2005).
There is no obligation under the Convention to
make legal aid available for all disputes (contestations)
in civil proceedings, as there is a clear distinction between the wording of
Article 6 § 3 (c), which guarantees the right to free legal assistance on
certain conditions in criminal proceedings, and of Article 6 § 1, which makes
no reference to legal assistance (see Del
Sol v. France, no. 46800/99, § 21, ECHR 2002-II).
However, despite the absence of a similar clause for civil litigation, Article
6 § 1 may sometimes compel the State to provide for the assistance of a lawyer
when such assistance proves indispensable to effective access to court, either
because legal representation is rendered compulsory, as is done by the domestic
law of certain Contracting States for various types of litigation, or by reason
of the complexity of the procedure or of the case (see Airey v.
Ireland, 9 October 1979, § 26, Series A no. 32). In discharging its
obligation to provide parties to civil proceedings with legal aid, when it is
provided by domestic law, the State must display diligence so as to secure to
those persons the genuine and effective enjoyment of the rights guaranteed
under Article 6 (see, inter alia, Staroszczyk
v. Poland, no. 59519/00, § 129, 22
March 2007; Siałkowska
v. Poland, no. 8932/05, § 107,
22 March 2007; and Bąkowska v. Poland, no. 33539/02, § 46, 12 January 2010). An adequate
institutional framework should be in place so as to ensure effective legal
representation for entitled persons and a sufficient level of protection of
their interests (ibid § 47). There may be occasions when the State should act
and not remain passive when problems of legal representation are brought to the
attention of the competent authorities. It will depend on the circumstances of
the case whether the relevant authorities should take action and whether,
taking the proceedings as a whole, the legal representation may be regarded as
“practical and effective”. Assigning
counsel to represent a party to the proceedings does not in itself ensure the
effectiveness of the assistance (see, for
example, Siałkowska, cited above, § 100). It is also
essential for the legal aid system to offer individuals substantial guarantees
to protect those having recourse to it from arbitrariness (Gnahoré v. France, no.
40031/98, § 38, ECHR 2000-IX).
However, a State cannot be considered
responsible for every shortcoming of a lawyer (see Kamasinski v. Austria, 19 December 1989, § 65, Series A no. 168). Given the independence of the
legal profession from the State, the conduct of the case is essentially a
matter between the defendant and his or her counsel, whether counsel be
appointed under a legal aid scheme or be privately financed, and, as such,
cannot, other than in special circumstances, incur the State’s liability under
the Convention (see Artico
v. Italy, 30 May 1980, § 36, Series A no. 37; Rutkowski v. Poland (dec.),
no. 45995/99, ECHR 2000-XI; and Cuscani
v. the United Kingdom, no. 32771/96, § 39,
24 September 2002).
(b) Application to the present case
The Court firstly notes that the procedure under
Article 29 of the Hague Convention is not at issue in the present case in so
far as the applicant, who was free to so do, chose to avail himself of
proceedings under Article 7 of the said Convention. In the latter proceedings,
instituted by the Prosecutor’s Office, the applicant had the role of interested
party and was vested with a right to appeal. As to the relevant appeal procedure,
the Court points out that, as confirmed by the Government, the relevant remedy
in the circumstances of the case was an appeal to the Court of Cassation, which
in the present case had to be filed by a lawyer competent to plead before that
court by 9 October 2008.
The Court further notes that the requirement that an appellant be represented by a qualified
lawyer before the Court of Cassation, such as applicable in the present case,
cannot, in itself, be seen as contrary to Article 6. This requirement is
clearly compatible with the characteristics of a highest court examining
appeals on points of law and it is a common feature of the legal systems in
several member States of the Council of Europe (see, for instance, Gillow v. the United Kingdom, § 69, 24 November 1986, Series A no. 109; and Vacher v. France, §§ 24 and
28, 17 December 1996, Reports 1996-VI). Indeed, in the present case a lawyer was
required for the purposes of the relevant proceedings and in this light legal aid
was granted to the applicant. The Court must, however, determine whether that grant
sufficed to safeguard the applicant’s right to have access to a court secured in
a “concrete and effective manner” (see, inter alia, Sialkowska,
cited above § 116, and Korgul v. Poland, no. 35916/08, § 29, 17 April 2012).
In
view of the general principles mentioned above, the Court must
therefore examine whether in the context of these civil proceedings, the State
displayed diligence so as to secure to the applicant the genuine and effective
enjoyment of his right to appeal under Article 6 and whether the
errors, as a consequence of which the applicant’s appeal was never lodged, were
manifest and imputable to the legal aid lawyers and if necessary whether they
were a result of a deficient framework.
The Court refers to the facts of the case as
outlined above (paragraphs 17-34). It notes that two matters of concern
transpire from those facts, namely the delays on the part of the Italian
authorities and the information to the applicant. In the interests of clarity,
the Court emphasises that in the present case, directed against the Italian
Government, the Italian authorities cannot be held accountable for any delays
which occurred in the transfer of information from the Romanian authorities to
the applicant.
In identifying the delays
attributable to the Italian authorities the Court notes that it took the
Italian authorities more than two weeks to inform the Romanian authorities
about the Youth Court’s decision of 6 July 2007. It then took them at
least another week to submit information about the available avenue
for appeal, which had been requested by the Romanian
Ministry of Justice. Later on,
once the information on legal aid had been obtained by
the Romanian authorities and sent on to the applicant, the legal aid application sent to the Italian
authorities on 13 September 2007 was only filed in court six weeks later, on 25
October 2007. Subsequently, while the decision to grant
the applicant legal aid was taken promptly (on 29 October
2007), notice of this decision was only given to the
Romanian authorities four weeks later, on 22 November 2007. The relevant information only reached
the applicant on 28 January 2008. The Court notes in respect of this latter delay that there appears to have been
some fault on the part of the Romanian authorities. However, it also notes that
the Italian authorities, who had requested an
acknowledgment of receipt by the applicant, did not take any action in the two months during which this acknowledgment was not
forthcoming.
Following a request by the Italian Ministry of Justice of 15 February 2008, it took more than a month for
the Council of the Bar Association to
provide a list of lawyers qualified to plead the applicant’s case. The
applicant then made his choice on 6 May 2008. However, the appointed legal aid lawyer only requested the case file
six weeks later, on 16 June 2008 and two weeks
later she informed the applicant that she was not competent to plead his case.
Thus, on 15 July 2008 the applicant requested a new list which the authorities provided to him a week later, on 23
July 2008. However, the information contained therein, concerning his chosen
lawyer, had not been correct and requests to the Council of the Bar Association for
fresh information remained unanswered. As a result, the
applicant only managed to contact a new lawyer through his own efforts on 23 September 2008, two months
after the original list was sent.
Turning to the guidance supplied and the quality
of the information submitted by the Italian authorities, the Court notes that
the information provided by the Ministry of Justice on 6 August 2007 contained
no proper guidance as to time-limits. The information given subsequently by the
Council of the Bar Association on 29 October 2007 contradicted the previous
instruction and was erroneous, in so far as it indicated the wrong competent court,
and again this information failed to give any guidance as to the applicable
time-limits to appeal. In this light, the list of lawyers provided to the
applicant also turned out to be inappropriate, as MCA, the lawyer whom the
applicant chose from that list, did not take up the appointment as she was not
qualified to plead before the Court of Cassation. Despite the fact that at that
point it was not yet critical, MCA also erred in informing the applicant that
the expiry of the time-limit was one year and forty-five days from the date of
the lodging of the decision. Indeed, as mentioned above, given the relevant dates
in the present case, two suspension periods were applicable to the one year
time-limit to appeal, and therefore the deadline was in fact one year and
ninety days from the lodging of the impugned decision. Lastly, when the
applicant managed to contact another lawyer (who was competent to plead before
the Court of Cassation), after having seen the file the latter also informed
him that she was not in a position to assist him on the basis that the
time-limit to appeal had already expired. The Court notes that, in reality and
as explained above, on that date the applicant still had two weeks, namely
until 9 October 2008, to lodge his appeal. Therefore, this refusal by the
lawyer was based on an erroneous premise.
As to the delays attributable to the Italian
authorities discussed above, while it finds it unjustifiable that the provision
of certain simple pieces of information required up to and sometimes more than
a month, the Court considers that given the generous time-limits applicable in
the present case it cannot be said that those delays alone, albeit regrettable,
undermined the very essence of the applicant’s right of access to court in
order to lodge his appeal.
However, the information supplied by the
authorities and the legal aid lawyers raises serious concern. Indeed, in the
present case, the applicant was repeatedly given incomplete or misleading information
about the appeal procedure. The Court considers that the deficient and
contradictory information given by two players in the legal aid system, namely
the Council of the Bar Association and the Ministry of Justice, as to which
remedy was available and which time-limit was applicable contributed substantially
to the applicant’s unsuccessful attempt to appeal.
. As
to the advice given by the appointed legal aid lawyers, the Court
considers that knowledge of simple procedural formalities falls within the
ambit of a legal representative’s competencies just as much as knowledge of
substantive legal issues. It is indeed also the lack of such knowledge which
makes it necessary for a lay person to be represented by counsel. Therefore,
the Court is of the view that such errors may, when critical to a person’s
access to court, and when incurable in so far as they are not made good by actions
of the authorities or the courts themselves, result in a lack of practical and
effective representation which incurs the State’s liability under the
Convention. In the present case, the advice of the two appointed legal aid
lawyers, both of whom gave erroneous information regarding the applicable time-limit,
and one of whom informed the applicant that he could no longer appeal, cannot
but amount to a manifest error, which in the present case was fatal to the
applicant’s chances of appealing.
The Court considers that, given MCA’s previous
advice, the applicant could not have imagined that both lawyers were
incorrectly applying the calculation of the time-limit and thus had no reason
to seek further assistance. Moreover, there does not appear to be any further
step he could have taken within the Italian legal framework to ensure that his
case had not been dismissed arbitrarily or, even assuming the lawyer had acted
in good faith, as a result of wrong advice. Thus, as a consequence of failings
in the system itself, namely in the way the relevant bodies directed the
applicant and particularly the failings of the appointed lawyers, the applicant
lost all possibility of pursuing an appeal against the impugned decision. Thus,
in the Court’s view these failings amounted to ineffective representation in
special circumstances which incur the State’s liability under the Convention.
The Court recalls that it is incumbent on an interested
party to display special diligence in the defence of his interests (see Teuschler v. Germany (dec.), no.
47636/99, 4 October 2001, and Sukhorubchenko v. Russia, no.
69315/01, §§ 41-43, 10 February 2005). In this respect it notes that in
the light of the facts as presented above, the applicant persistently pursued
his case and contacted the relevant authorities to obtain pertinent
information. When he was required to act, such as by making his legal aid application
or supplying lawyers with the relevant documentation, the time he took to
proceed with those actions does not appear excessive. It follows that in the
present case the applicant showed the required diligence by following his case
conscientiously and maintaining effective contact with his nominated
representatives (see, a contrario, Muscat v. Malta, no. 24197/10, § 59, 17 July 2012).
In the light of the above,
the Court is of the view that the applicant was put in a position in which his
efforts to exercise his right of access to court in a “concrete and effective
manner” by way of legal representation appointed under the legal aid system
failed. In conclusion, the Court considers that in the present case the
delay by the Italian authorities in providing relevant and correct guidance,
coupled with the lack of practical and effective representation, impaired the
very essence of the applicant’s right of access to court in order to appeal against
the judgment of the Bologna Youth Court.
There has accordingly been a violation of
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 6 AND 8 OF THE
CONVENTION
The applicant complained that in taking the
decision, the Bologna Youth Court had exceeded its jurisdiction and competence
under the Hague Convention and accordingly had interfered with his right to
respect for his private and family life - an interference which had neither been
justified nor necessary under Article 8 of the Convention. The applicant further
complained of a violation of Article 6, in so far as he had not been given the
opportunity to challenge the statements made by his wife’s attorney at the
hearing on 18 June 2007 and the expert report ordered by the Bologna Youth
Court, and in as much as his subsequent submissions had not been taken into
account. Moreover, he had not been able to fully participate in the hearing as the
relevant documents had only been made available at the hearing and only in the
Italian language. Article 8, in so far as relevant, read 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.”
The Government contested that argument.
The Court reiterates that it is the master of
the characterisation to be given in law to the facts of the case (see Guerra
and Others, cited above, § 44). While Article 6 affords a procedural
safeguard, namely the “right to court” in the determination of one’s “civil
rights and obligations”, Article 8 serves the wider purpose of ensuring proper
respect for, inter alia, family
life. In this light, the decision-making process leading to measures of
interference must be fair and such as to afford due respect to the interests
safeguarded by Article 8 (see Iosub Caras v. Romania, no. 7198/04, § 48,
27 July 2006, and Moretti and Benedetti v. Italy, no. 16318/07, § 27, 27 April
2010).
In the instant case, the Court considers
that this complaint, raised by the applicant under Article 6, is closely linked
to his complaint under Article 8, and may accordingly be examined as part of
the latter complaint.
A. Admissibility
The Court notes that the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant submitted that the impugned
decision had had no legitimate aim and had been disproportionate. Moreover, it
had not been in accordance with the law, as the Italian court had gone beyond
its competence according to Articles 13-15 of the Hague Convention by
interpreting the notarial deed and making assessments as to parental rights. By
refusing his return application, the court had automatically given M. custody
rights over the child, a matter which had fallen within the jurisdiction of the
Romanian authorities. He submitted that the court’s decision had also not been
in accordance with the Hague Convention, as the parents had had joint parental
rights and their son had not been allowed to leave Romania with one parent
without the consent of the other parent, a consent which had been missing in
the present case. He reiterated that his ex-wife and son had moved to Italy on 20 January 2007 without his consent. After he had repeatedly complained to the
local authorities, he had turned to the authority responsible for matters
involving international kidnapping. Thus, it could not be said that he had
acted with delay, and in any event, even assuming that the removal of the child
had happened in 2006, the domestic court had been obliged to apply the second
paragraph of Article 12 of the Hague Convention and assess whether it would nevertheless
have been in the best interests of the child to order his return. In this light,
the decision of the Bologna Youth Court had not been in accordance with the Hague
Convention and had totally disregarded the best interests of the child.
Indeed, the Bologna Youth Court had failed to
assess whether, according to Romanian law, the child had been taken away and detained
and whether by ordering his return to Romania the child would be faced with a
serious risk of being exposed to physical or psychological harm.
With reference to the hearing of 18 June 2007
the applicant complained that he had been denied the right to cross-examine
witnesses and that the court had disregarded any elements he had put forward relevant
to his claims. While it was true that there had been cross-examination in
respect of aspects related to their divorce and parental rights, the applicant
had not been given access to the medical documents or other evidence referred
to by his ex-wife in the proceedings, nor had he been allowed to make arguments
challenging that evidence. Requests made by the applicant for the court to
obtain further information had been rejected by the court, contrary to the
equality of arms principle. The procès-verbal submitted by the Government
also showed that the court had not examined the reasons why he deemed the child
should be returned and there had been no reference to the invocation of his
procedural rights under Article 6 of the Convention. The applicant noted that
the situation had been exacerbated by the fact that the public prosecutor had
only been entrusted with the case on the day of the hearing, and had not been familiar
with the facts of the case and the Hague Convention. Moreover, she had not
rebutted any of his ex-wife’s arguments. According to the applicant, the court’s
neglect had also been evident in its decision, which had contained factual
errors and omissions. Lastly, the applicant argued that his participation had
been limited because of the poor quality of the interpretation provided by the
interpreter, who had only been able to interpret the proceedings summarily
given the speed of the proceedings in the Italian language.
The Government submitted that the Youth Court’s
decision had been in accordance with the law and the Hague Convention. Even
assuming that the applicant’s consent to A. travelling to Italy had been limited
to 2005 and that his son’s presence in Italy had therefore become unlawful from
1 January 2006, the applicant had instituted proceedings too late for the
purposes of the Hague Convention criteria. In any event, the impugned decision had
been based on the pleadings made before the court at the hearing on 18 June
2007 and had had the aim of safeguarding the best interests of the child. Moreover,
the applicant had been present and had been assisted by an interpreter during
the hearing leading to the impugned decision and had given his views freely.
2. The Court’s assessment
(a) General principles
. The
Court first notes that the mutual enjoyment by parent and child of each other’s
company constitutes a fundamental element of family life and is protected under
Article 8 of the Convention (see Monory v.
Romania and Hungary, no. 71099/01, § 70, 5
April 2005, and Iosub Caras, cited above, §§ 28-29).
In the sensitive area of
family relations, the State is not only bound to refrain from taking measures
which would hinder the effective enjoyment of family life, but, depending on
the circumstances of each case, should take positive action in order to ensure
the effective exercise of such rights. Thus, the Court has repeatedly held that
Article 8 includes a parent’s right to the taking of measures with a view to
his or her being reunited with his or her child and an obligation on the
national authorities to take such action. However,
the national authorities’ obligation to take measures to facilitate reunion is
not absolute, since the reunion of a parent with children who have lived for
some time with the other parent may not be able to take place immediately and
may require preparatory measures to be taken (see Ignaccolo-Zenide
v. Romania, no. 31679/96, § 94, ECHR 2000-I).
. In
the area of positive obligations, 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 - was struck, within the margin of appreciation
afforded to States in such matters (see Maumousseau
and Washington v. France, no. 39388/05, § 62, 6 December 2007), bearing in mind, however, that the child’s best interests
must be the primary consideration (see Gnahoré, cited above, § 59).
Notwithstanding the State’s
margin of appreciation, the Court is called to examine whether the
decision-making process leading to an interference was fair and afforded due
respect to the interests safeguarded by Article 8 (see Ignaccolo-Zenide, cited
above, § 99, with further references, and Tiemann
v. France and Germany (dec.), nos. 47457/99
and 47458/99, ECHR 2000-IV). To that end,
the Court must ascertain whether the domestic courts have made, within a
reasonable time, an adequate examination of the concrete implications which the
return of the child would have had (see B. v. Belgium, no. 4320/11, § 63, 10 July 2012).
. Furthermore,
the States’ obligations under Article 8 of the Convention are to be interpreted
in harmony with the general principles of international law, and, in the area
of international child abduction, particular account is to be given to the
provisions of the Hague Convention (see Golder
v. the United Kingdom, 21 February 1975, § 29,
Series A no. 18, and Karrer v. Romania, no. 16965/10, § 41, 21 February 2012). 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). 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 (see Neulinger
and Shuruk v. Switzerland [GC], no. 41615/07,
§ 138, 6 July 2010).
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; Kutzner v. Germany, no. 46544/99,
§§ 65-66, ECHR 2002-I; Bianchi v. Switzerland, no. 7548/04, § 92, 22 June 2006; and Carlson v. Switzerland, no.
49492/06, § 69, 6 November 2008). The Court is thus 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, cited above, § 92; Carlson,
cited above, § 73; and Neulinger and Shuruk, cited above, § 141).
(b) Application in the present case
i. Substantive aspect
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, and Carlson, cited above, § 69). Accordingly, the Bologna
Youth Court’s decision not to return A. constituted an interference with the applicant’s
right to respect for his 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 the relevant
provisions of the Hague Convention were sufficiently
clear that in order to ascertain whether the removal was wrongful within the
meaning of Article 3 of the Hague Convention, the Italian courts had to decide
whether it had been carried out in breach of the rights of custody in the State
in which the child was habitually resident immediately before his removal.
Moreover, even where removal has been wrongful, Article 13 provides for
exceptions where the court is not bound to order the return of the child. In
the light of the applicant’s submissions, it must be recalled that it is not
the Court’s function to deal with errors of fact or law allegedly committed by
a national court unless they may have infringed rights and freedoms protected
by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). Moreover,
the national courts are entrusted to resolve problems of interpretation and
application of domestic legislation as well as rules of general international
law or international agreement (see Maumousseau
and Washington, cited above, § 79). It follows that for the purposes of the lawfulness requirement,
the Court is satisfied that the Bologna Youth Court decision had its basis in
the provisions of The Hague Convention coupled with Law no. 15 of 1994.
. The
Court also accepts that the interference pursued
the legitimate aim of protecting the interests of others.
The Court must however 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, and whether
when striking the balance between the competing interests at stake -
those of the child and of the two parents - appropriate
account was given to the child’s best interests, within the margin of
appreciation afforded to States in such matters
(see Karrer, cited above,
§ 44).
As mentioned above, the task to assess those
best interests in each individual case is thus primarily one for the domestic
authorities, which have the benefit of direct contact with the persons
concerned.
The Court notes that in the present case the
Bologna Youth Court considered that the child had not been wrongfully removed. While
the Court fails to see the relevance of the emphasis placed on
the fact that the applicant did not have exclusive custody rights, given that
the same procedure applies in cases of joint custody (see, mutatis mutandis,
Monory, cited above, § 76), it notes that this factor did not
constitute the sole basis of the decision that the removal was not wrongful.
The domestic court further considered that the applicant had consented to A.’s
transfer, presumably on the basis of M.’s testimony and the deed submitted by
her, which the domestic court must have found to be more credible vis-à-vis
the applicant’s assertion. The Court observes that this is essentially a matter
of assessment of evidence falling within the exclusive
competence of the national authorities. The Court further observes that despite
its decision that the removal was not wrongful the Bologna Youth Court further
assessed the implications return would have had for the child, and considered
that psychological harm would ensue given that he was integrated into Italian
society, albeit with some problems.
. Having
regard to the State’s margin of appreciation in this sphere, and having
considered the case as a whole, the Court accepts that the Bologna Court’s
decision struck a fair balance between the competing interests at stake giving
appropriate account to the child’s best interests.
. Accordingly,
the Court finds that there is no substantive violation of Article 8.
ii. Procedural aspect
The Court notes that the applicant also
complained that he had been denied access to
medical documents and other evidence referred to by his ex-wife in the
proceedings, and that he had not been allowed to make arguments challenging
that evidence, contrary to the equality of arms principle.
. In
this respect, the Court reiterates that the Convention is designed to
“guarantee not rights that are theoretical or illusory but rights that are
practical and effective” (see, among other authorities, Airey, cited above, § 24).
As regards litigation involving opposing private interests, equality of arms
implies that each party must be afforded a reasonable opportunity to present
his case - including his evidence - under conditions that do not place him at a
substantial disadvantage vis-à-vis his opponent. It is left to the national authorities to ensure
in each individual case that the requirements of a “fair hearing” are met (Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274).
In view of its findings under Article 6 in
relation to the proceedings at issue (see paragraphs 64-65 above), the Court considers
that it is not necessary to examine this part of the complaint.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 12 TO THE CONVENTION
The applicant further complained under Article
14 of the Convention and Article 1 of Protocol No. 12 that he had been
discriminated against as a father by the Bologna Youth Court, as his
statements, arguments and evidence had not been given the same weight as his
wife’s. He submitted that his submissions and supporting evidence had been
totally disregarded by the courts, as opposed to M.’s unsubstantiated
statements.
The Government submitted that both the pleadings
of the applicant and those of the child’s mother had been considered by the
domestic court and therefore no discriminatory treatment had been meted out.
In so far as the complaint
was lodged under Article 1 of Protocol No. 12 to the Convention, the Court
finds that, as Protocol No. 12 has only been signed but not ratified by the
respondent State, the applicant’s complaint in this regard is incompatible ratione personae with the
Convention, and must therefore be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention (Maggio and Others v. Italy, (dec.), nos.
46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, 8 June 2010).
In so far as the complaint was lodged under
Article 14, presumably in conjunction with Articles 6 and 8 of the Convention,
there are no elements in the case-file which enable the Court to find that the
decision of the domestic court was motivated by discriminatory considerations
(see Macready v. the Czech Republic, nos. 4824/06 and 15512/08, § 70, 22 April 2010).
It follows that this
complaint is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL
No. 7 TO THE CONVENTION
Relying upon Article 5 of Protocol No. 7, the
applicant further complained that the impugned decision, in practice, had given
his wife more rights vis-à-vis their child. He noted that his submissions
and supporting evidence had been totally disregarded by the courts, as opposed
to M.’s unsubstantiated statements, and no regard had been given to the best interests
of the child.
The Government submitted that both the pleadings
of the applicant and those of the child’s mother had been considered by the
domestic court and therefore no difference in treatment had occurred.
. The
Court recalls that it has previously decided that Article 5 of Protocol No. 7
essentially imposes a positive obligation on States to provide a satisfactory
legal framework under which spouses have equal rights and obligations
concerning such matters as their relations with their children (see Cernecki v. Austria,
(dec.), no. 31061/96, 11 July 2000, and Iosub Caras, cited above, § 56).
. In
the present case, the applicant does not question the legislative framework,
his complaint being solely directed at the assessment of the domestic court.
It follows that this
complaint is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
V. 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 applicant claimed 150,000 euros (EUR) in
respect of non-pecuniary damage suffered due to the loss
of his parental rights and the effect this had had on his son, and due to the
anxiety and distress he had experienced on account of the domestic proceedings.
The Government considered that no non-pecuniary
damage had been suffered since, in their view, the applicant had not been a
victim of a violation.
The Court considers that the applicant must have suffered distress as a result of the
violation found. In the light of the circumstances of the case, and making an
assessment on an equitable basis, the Court awards the applicant EUR
14,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 3,500 for costs
and expenses incurred before the Court. He submitted a lawyer’s bill for EUR
3,000 and various bills for different amounts related to photocopying,
translations and postage fees in conjunction with the proceedings before the
Court.
The Government submitted that no costs and
expenses were due since, in their view, the applicant had not been a victim of
a violation. In addition, they noted that the documentary evidence submitted had
related to the proceedings in Romania.
The Court notes that all the documentation
submitted by the applicant relates to the proceedings before this Court,
including the bill (in Romanian) related to his lawyer’s fees dated 2012 which
clearly states that it is in respect of representation before the European
Court of Human Rights. 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, together with the fact that
a number of complaints were unsuccessful; the Court considers it reasonable to
award the sum of EUR 3,000 covering costs for the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate 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 UNANIMOUSLY
1. Declares the complaints brought under Articles
6 and 8 of the Convention admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 6 of the Convention in so far as the applicant was denied access to
court in order to appeal against the judgment of the Bologna Youth Court;
3. Holds that there has not been a violation
of the substantive aspect of Article 8 and that it is not necessary to examine
the procedural aspect of Article 8 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 14,000 (fourteen thousand euros), plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,000 (three thousand euros), plus any tax
that may be chargeable to the applicant, 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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Danutė
Jočienė
Registrar President
