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Italiaanse vader krijgt voogdij na scheiding en start procedure nadat moeder het kind ontvoert - Mensenrechtenhof veroordeelt Zwitserland (en)

Met dank overgenomen van Raad van Europa (RvE), gepubliceerd op donderdag 22 juni 2006.

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Bianchi v. Switzerland (application no. 7548/04).

The Court held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 15,000 euros (EUR) for non-pecuniary damage and EUR 5,000 for costs and expenses. (The judgment is available only in French.)

  • 1. 
    Principal facts

The applicant, Stefano Bianchi, is a 44-year-old Italian national who lives in Buggiano (Italy). On 26 June 1998 the applicant married E.H. in Italy. The couple took up residence in Italy. On 28 November 1999 they had a son.

In June 2002 they separated and E.H. took the child to Switzerland without authorisation.

On 2 February 2003 the District Court of Pistoia (Italy) awarded custody of the child to the applicant. A psychiatric report on the child which was ordered in May 2003 confirmed that Mr Bianchi should have sole custody. Mr Bianchi found a flat for the child’s mother in the neighbourhood and offered to share custody with her.

As the mother had abducted the child and taken him to Switzerland in June 2002, the applicant applied to the Swiss authorities on 30 September 2002 to have his son returned to Italy. He relied on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”). On 23 April 2003 the Swiss Federal Court ordered the return of the child to Italy. The child and his mother returned to Italy. On 23 December 2003 the applicant handed the child over to the mother for a scheduled access visit. The mother then disappeared with her son. 

On 6 January 2004 the applicant applied to the Willisau District Court seeking the return of his son. He relied on the Hague Convention.

On 7 January 2004 the District Court ordered the child to be kept in Switzerland pending the outcome of the proceedings for the child’s return. No decision was taken regarding visiting rights for the applicant.

On 28 January 2004 the applicant lodged a criminal complaint against his wife alleging abduction of a minor within the meaning of Article 220 of the Swiss Criminal Code. On 15 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).

On 7 April 2004 the applicant lodged a further criminal complaint against his wife. The two sets of criminal proceedings were then stayed pending the outcome of the proceedings for return of the child.

On 14 April 2004, at the request of the applicant, the Willisau District Court granted him visiting rights of four hours a week, to take place at a neutral venue.

On 3 May 2004 the Willisau District Court rejected the application made by the applicant to have his son returned to Italy. The court, taking into account the considerable reluctance displayed by the child at the prospect of returning to Italy, found that the child had not been happy there and had much closer ties with his mother than with the applicant. The applicant appealed against the court’s decision.

In a judgment of 12 July 2004 the Canton of Lucerne Higher Court ordered that the child be returned by 31 July 2004 at the latest, if necessary with the help of the police. The court ruled that it was to be expected that the child would oppose his return to Italy after having been in the sole care of his mother for several months.

The mother’s lawyer sent a fax to the applicant’s representative stating that the mother 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.

A report by the supervisory authority dated 27 August 2004 stated that the nine meetings between the applicant and his child - which had taken place between 24 April 2004 and 18 July 2004 in a closed venue and in the presence of a welfare officer - had proceeded satisfactorily and that the applicant had complied with all the conditions laid down by the District Court.

On 15 August 2004 the child’s mother contacted the police officer handling the case and announced that she would come in for questioning. She turned up alone and refused to divulge the whereabouts of the child. However, she confirmed that her son was in good health physically and was happy to remain with her. She promised that she would abide by any ruling against her by the Federal Court. After the interview, which lasted forty minutes, the police officer allowed her to leave.

From September 2004 onwards the authorities in the Canton of Lucerne took numerous steps in an attempt to trace mother and child, including searching premises, investigations in banks and post offices, tracking accounts, telephone monitoring and observation.

On 21 September 2004 Pistoia District Court delivered its judgment, confirming the separation of the married couple and awarding effective custody of the child to the applicant and visiting rights to the mother.

By judgment of 15 October 2004 the Federal Court dismissed the mother’s appeal.

At the time of adoption of the present judgment, the child and his mother did not appear to have been traced.

  • 2. 
    Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 21 February 2004. On 27 September 2004 the President of the Chamber examining the case decided to give it priority (Rule 41 of the Rules of Court).

The application was declared partly admissible on 4 October 2005.

Observations were received from the Italian Government, which exercised its right to intervene (Articles 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court).

Judgment was given by a Chamber of seven judges, composed as follows:

Peer Lorenzen (Danish), President,

Luzuis Wildhaber (Swiss),

Karel Jungwiert (Czech),

Volodymyr Butkevych (Ukrainian),

Margarita Tsatsa-Nikolovska (national of “the former Yugoslav Republic of Macedonia”),

Javier Borrego Borrego (Spanish),

Renate Jaeger (German), judges,

and also Claudia Westerdiek, Section Registrar.

  • 3. 
    Summary of the judgment2

Complaints The applicant complained of the violation of his rights under Article 8 and Article 6 § 1 (right to a fair hearing) of the Convention, on account of the length of the proceedings before the authorities of the Canton of Lucerne and the failure by the Swiss authorities to enforce the judicial decisions ordering the return to Italy of his son, who had been abducted by the child’s mother. Decision of the Court Article 8 The Court noted that the decisions and proceedings complained of following the disappearance of the child had constituted “interference” in so far as they had prevented the applicant, at least temporarily, from exercising his right of custody of his son. It also observed that the District Court decision of 3 May 2004 at least had been based on the provisions of the Hague Convention, which were incorporated into Swiss law and applied with the aim of protecting the child. The legitimacy of that aim had, moreover, not been disputed. The refusal of the child’s mother to return him after the scheduled visit in December 2003 undoubtedly fell within the scope of the Hague Convention.

In order to determine whether the judicial proceedings and decisions and the measures taken by the Lucerne cantonal authorities to implement those decisions satisfied the requirements of Article 8, the Court decided to analyse the facts it considered to be relevant in the light of the Hague Convention.

The Court expressed doubts as to whether the decision by the Willisau District Court ordering the child to be kept in Switzerland pending the outcome of the proceedings on his possible return to Italy 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 access during the pending proceedings, of a kind which might have enabled him to maintain his ties with his child. It had been at the request of the applicant himself that the relevant authorities had granted him the right to see his child once a week. The nine meetings between the applicant and his child also appeared to have passed off very satisfactorily.

Furthermore, the Court noted that Willisau District Court had not given a ruling until 3 May 2004, that is, almost four months after the applicant had lodged his application for the child to be returned to Italy. It was not satisfied that such a lapse of time was compatible with Article 11 of the Hague Convention, which required the judicial and administrative authorities to act “expeditiously” in proceedings for the return of a child.

Willisau District Court had eventually 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. Given that the child had expressed considerable reluctance at the prospect of returning to Italy, the question arose whether reliance should have been placed on a single report relating to the visiting rights of a parent who did not have custody of the child, aged thirteen, 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 to Italy had been due mainly 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 the least, to ensure regular contact between the child and his father during the pending proceedings so as to prevent irreparable damage to their relationship. In that connection, it shared the opinion of the Higher Court that it was entirely understandable that the child, who was four at the time and had been in the sole care of his mother for several months, would have opposed his return to Italy.

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 although she had not handed over the child, despite the fact that she had already abducted him and had been penalised scarcely five months previously for abduction of a minor.

The Court found that the Lucerne cantonal authorities had taken a large number of measures from September 2004 onwards in a bid 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 overall, 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 caused the complete break-off in contact between father and son, which had lasted almost two years and which, given the very young age of the child, was liable to result in growing alienation between them which could not be said to be in the child’s best interests. Accordingly, the Court could not consider that the applicant’s right to respect for his family life had been protected in an effective manner as required by the Convention. There had therefore been a violation of Article 8.

Article 6 § 1

The Court noted that the two aspects raised under Article 6 § 1 – namely the length of the proceedings before the Lucerne cantonal authorities and the failure to enforce the decision of the Higher Court of 12 July 2004 ordering the return of the child to Italy – although not identical to the complaint under Article 8, should be regarded as constituting its very substance. Accordingly the Court, having found a violation of Article 8, did not consider it necessary to examine those allegations separately under Article 6.

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Press Contacts 

Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)

Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)

Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

Council of Europe Press Division

Tel: +33 (0)3 88 41 25 60

Fax:+33 (0)3 88 41 39 11




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