Tribunal Europeo de Derechos Humanos (TEDH)
6 December 2005
Convenio Europeo de Derechos Humanos (CEDH) | Cuestiones procesales
- Article 8 of the ECHR (Right to Private and Family Life)
The Court noted that the mother and daughter's mutual enjoyment of each other's company constituted a fundamental element of family life, and that the 1980 Hague Child Abduction Convention return proceedings constituted an interference in that family life for the purposes of Article 8(2) of the ECHR. It therefore had to be determined whether the interference was "necessary in a democratic society" within the meaning of the latter provision.
In this, the Court held the decisive issue was whether the necessary fair balance had been struck between the competing interests of the child, her two parents and public policy, within the limits of the margin of appreciation enjoyed by the States.
The Court found that the mother's complaint that the decision of the Rabbinical Court was delivered in her absence, had no decisive weight. This was because the latter decision did not concern the merits of custody rights and was used to reach factual conclusions in the determination of the 1980 Hague Child Abduction Convention application.
The Court accepted that the concept of the child's best interests should be paramount in the procedures put in place by the 1980 Hague Child Abduction Convention. However, it could not be overlooked that among the elements of that concept a child should not be removed from one of its parents and retained by the other.
The Court did not find any reason, in the light of Article 13(1)(b) of the 1980 Hague Child Abduction Convention, to believe that the Turkish courts had drawn arbitrary conclusions from the arguments submitted to them in the adversarial proceedings.
The Court further rejected the mother's arguments as regards the situation in Israel. In this it noted that if the child was accompanied by relatives, her personal situation would not give greater cause for alarm than that of other children living in Israel. Moreover, the Court noted that the family had lived in Israel for years without trouble and the child herself had been born there.
As regards the complaint that the child had not been heard, the Court noted that it was not its task to substitute its own assessment of the facts and the evidence for that of the Turkish courts. However, it noted that having regard to the child's age, it found it plausible that hearing the child would not have served any purpose.
- Article 6 of the ECHR (Right to a Fair Trial)
The Court noted that the Turkish authorities had to assist with the child's return, unless objective factors caused them to fear that the child and, if applicable, her mother risked suffering a "flagrant denial of justice". (The latter being the applicable standard as Israel is not a Council of Europe State, subject to the ECHR).
The conclusion of the Court was that it was not persuaded the Turkish authorities had sufficient material in their possession to suggest that the possible shortcomings in proceedings that the applicants might face in Israel might amount to a "flagrant denial of justice".
The Court equally held by a majority to lift the interim measure indicated to the Turkish Government under Rule 39 of the Rules of Court.
Author of the summary: Peter McEleavy
As regards the application of the ECHR where the return of a child to a non Council of Europe State is at issue see also: E.M. (Lebanon) v. Secretary of State for the Home Department  UKHL 64,  1 A.C. 1198 [INCADAT Reference: HC/E/UK 994].
Preparation of INCADAT commentary in progress.