CEDH · CASELAW;CLIN;ENG — 22 juin 2006

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Switzerland - 7548/04 Judgment 22.6.2006 [Section V] Article 8 Article 8-1 Respect for family life Respect for private life Insufficiency of measures taken following the international abduction of a child: violation   Facts : The applicant, an Italian national, married his wife in Italy, where the couple then took up residence. In November 1999 they had a son. In 2002 they separated and the mother took the child to Switzerland without authorisation. Divorce proceedings were subsequently instituted. In February 2003 the District Court of Pistoia (Italy) awarded custody of the child to the applicant, and that decision was confirmed as being appropriate by a psychiatric report in May 2003. The applicant applied to the Swiss authorities to have his son returned to Italy, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. In April 2003 the Swiss Federal Court, ruling at last instance, dismissed an appeal by the mother and ordered the return of the child to Italy. The child and his mother returned. In June 2003 the Pistoia District Court confirmed the applicant’s right of custody. On 23 December 2003 the applicant handed the child over to the mother for a scheduled visit, but the mother then disappeared with her son. On 6 January 2004 the applicant applied to the District Court of Willisau (Canton of Lucerne, Switzerland) to obtain an order for the return of his son, relying on the Hague Convention. The next day that court ordered that the child be kept in Switzerland pending the outcome of the proceedings for the child’s return. In March 2004 the child’s mother was ordered by the Willisau prefect’s office to pay a fine of 300 Swiss francs (approximately EUR 191) for child abduction, as provided for by Article 220 of the Swiss Criminal Code. In May 2004 the Willisau District Court rejected the applicant’s application and found that, whilst the abduction had been unlawful under Article 3 of the Hague Convention, the conditions of Article 13 thereof were satisfied in the circumstances of the case and it could not order the return of the child, in spite of the father’s right of custody, since the child had refused to return to Italy. However, the applicant, arguing that the district court judgment was null and void, appealed to the Canton of Lucerne Higher Court, which, on 12 July 2004, ordered that the child be returned by 31 July 2004 at the latest, if necessary with the help of the police. The evidence adduced by the mother was not sufficient for the court to establish the existence of a grave risk that his return would expose him to physical or psychological harm, within the meaning of Article 13 of the Hague Convention. But in late July 2004 the mother let it be known that she would not hand over the child and would refuse any contact between the child and his father until the Federal Court had ruled on the public-law appeal which she intended to lodge against the decision of 12 July 2004. The mother was questioned by the police in August 2004. Since that date, despite numerous steps taken by the Swiss police in an attempt to trace mother and child, their whereabouts have remained unknown. In a judgment of 15 October 2004 the Federal Court dismissed the mother’s appeal and upheld the decision taken by the Canton of Lucerne Higher Court on 12 July 2004. An international arrest warrant was issued against the mother in November 2004. Law : Article 8 – The decisions and proceedings complained of following the disappearance of the child had constituted an “interference”, within the meaning of Article   8(2), in so far as they had prevented the applicant, at least temporarily, from exercising his right of custody over his son. The Court observed that the impugned District Court decision of 3 May 2004 had at least been based on the provisions of the Hague Convention, which were incorporated into Swiss law and had been applied with the – legitimate – aim of protecting the child. As to the necessity of that interference in a democratic society, it was noteworthy first of all that the applicant had, on 6 January 2004, lodged an application in the Willisau District Court seeking the return of his son to Italy and that the court, on 7 January 2004, had ordered the child to be kept in Switzerland pending the outcome of the proceedings regarding his possible return. The Court expressed doubts as to whether that decision had been correct, given that it had to some extent endorsed the situation created by the indisputably illegal action of the child’s mother in abducting the child in June 2002. Furthermore, the existence of a situation covered by Article 13 of the Hague Convention had received no mention in the operative part of the decision of 7 January 2004. The Court also, like the Italian Government, which was an intervening party, entertained doubts as to whether the decision of the District Court to conduct a fresh investigation of the case had been appropriate, given that the case had already been examined by it and had been determined by the Swiss Federal Court scarcely nine months earlier, on 23 April 2003. The Court noted in that connection that neither the Lucerne cantonal authorities nor the Swiss Government had claimed a fundamental change in circumstances which would have warranted reconsidering the legal situation already established by the Italian and Swiss courts. Account also had to be taken of the fact that the District Court had not offered the applicant favourable terms of contact during the pending proceedings, of a kind which might have enabled him to maintain his ties with his child. Further, the Court noted that Willisau District Court had not given a ruling until 3   May 2004, almost four months after the applicant had lodged his application for the child to be returned to Italy. Willisau District Court had ultimately rejected the applicant’s application on the ground that the conditions laid down by Article 13 of the Hague Convention had been met. The Court expressed reservations as to the decision-making process which resulted in that judgment. In so far as the child had allegedly expressed considerable reluctance at the prospect of returning to Italy, the question arose whether reliance should have been placed on a single report drawn up on the basis of two meetings between the child (then aged four) and his father, four months after they had last had contact. In that context the Court also took the view that the child’s reluctance at the prospect of returning – a point emphasised by the District Court – had mainly been attributable to the fact that the Lucerne cantonal authorities had neglected to take any of the measures that could reasonably have been expected of them to enforce the order for the child’s return or, at least, to ensure regular contact between the child and his father while the proceedings were pending. On 12 July 2004, just over one month after the applicant’s appeal had been referred to it (on 8   June 2004), the Canton of Lucerne Higher Court had ultimately set aside the decision of the court below, ordering that the child be returned by 31 July 2004 at the latest, if necessary with police assistance. The Court did not dispute the fact that the Lucerne cantonal authorities had taken numerous steps from September 2004 onwards in an attempt to trace the child and his mother. Nevertheless, it was very surprised at the events of 15 August 2004, when the mother had gone to the police station. It found it surprising that the officers in charge had allowed her to leave even though she had not handed over the child, despite the fact that she had already abducted him and had been penalised scarcely five months previously, by the Willisau prefect’s office, for the offence of abducting a minor under the Swiss Criminal Code. In those circumstances, the Court accepted that the Lucerne cantonal authorities had taken a large number of measures from September 2004 onwards in order to trace the child and his mother. Nevertheless, their attitude during the period between the child’s abduction and their last contact with his mother on 15 August 2004 had, taken as a whole, been somewhat lax and as such incompatible with the object and purpose of the Hague Convention and with its wording, which was particularly clear and rigorous. This passive attitude had led to the complete severance of contact between father and son, which had lasted almost two years and which, given the very young age of the child, was capable of resulting in a growing “alienation” between them that could not be said to be in the child’s best interests: violation (unanimously). Article 41 – EUR   15,000 for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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