Cour européenne des droits de l’homme (CourEDH)
3 May 2012
Convention européenne des droits de l’homme (CEDH)
CrEDH - Violation de l'Article 8 CEDH, octroi de dommages et intérêts
The Court pointed out that it has discretion to characterise in law the facts of the matter, and stressed that the difference between the aims of the safeguards offered by Articles 6§1 and 8 of the ECHR, respectively, could, according to circumstance, justify the review of the same series of facts from the angle of either Article. It observed that the applicant had taken a series of administrative and judicial actions for his daughter's return to the United States of America, and challenged mainly the merits of the domestic Courts' decision denying that return.
In this respect, it pointed out that the complaints concerning disputes affecting the personal connections between parents and children are matters of "family life" within the meaning of Article 8 of the ECHR. Pointing out that Article 8 of the ECHR demands fairness of the decision-making process resulting in measures of interference, and requires the State to take appropriate measures to reunite the parent and child concerned, the Court reviewed the father's claims from the angle of Article 8 of the ECHR.
It noted that it was not disputed that the link between the father and his daughter was a matter of family life, and pointed out that it had had occasion, in the judgment Ignaccolo-Zenide v. Romania [INCADAT Reference: HC/E/ 336)], to rule upon the affirmative duties imposed on Contracting States by Article 8 of the ECHR as regards reuniting a parent and his or her children.
It added that when the 1980 Hague Child Abduction Convention is asserted, it does not apply automatically, and that the exceptions require the Court seized to "approach the matter in concreto". It stressed further that it was incumbent first of all on the domestic authorities to interpret the domestic legislation, as the role of the ECHR was merely to "ascertain whether they were applicable, and whether their interpretation was consistent with the Convention".
In its view, the crux was "whether the fair balance required between the competing interests involved - those of the child, those of both parents and those of the community - was secured, within the limits of the discretion available to the States in this matter", "though the child's best interest was to be the overriding consideration" but "the parents' interest, and in particular in having regular contact with the child, [remained] a factor in the balance of the various interests involved".
As the child's interests are determined case by case, it had to "ascertain whether the domestic courts had performed in-depth review of the whole family situation, and of a whole range of factors, factual, emotional, psychological, material and medical in particular, and whether they had performed a balanced and reasonable appraisal of all the parties' interests, with a constant concern to determine the best solution for the abducted child in the case of an application for return to its country of origin".
On that basis, the Court had jurisdiction "to review the procedure applied by the domestic courts, and to determine whether the grounds supposed to justify the measures actually selected [...] are relevant and adequate in relation to Article 8". The Court found that in the case in question, the Izmir Court had acted with regard for the child's interest and had considered that this interest consisted in remaining in Turkey with her mother.
The Court observed, however, that the only criteria that had been given consideration in the case were "the child's very young age and her resulting need for a mother's affection and attention". It was in no way apparent from the Turkish decisions that they had been made in the light of the principles laid down by the Hague Convention: the lower Court did not seem to have enquired whether the father had a right of custody or to have ruled on the lawfulness of the disputed retention. The same was true of the Supreme Court, which had merely found no mistakes in review of the evidence.
The Court noted that by considering that the child's retention was not such as to impede the child's personal relationship with her father, the Izmir Court had "not taken sufficient account of the fact that the presence" of the child "in Turkey made maintenance of that personal relationship de facto unrealistic".
Yet while very young age is "one criterion to be taken into account to determine the child's interest in disputes of this kind", the Court noted that "it may not be considered by itself as sufficient grounds, in relation to the requirements of the Hague Convention, to justify dismissal of the applicant's claim".
It accordingly held that, in the case in question, the domestic courts had not performed a review in depth of the whole family situation concerned, and that the decision-making process under domestic law had not met the procedural requirements inherent in Article 8 of the ECHR.
Author of the summary: Aude Fiorini
Preparation of INCADAT commentary in progress.
Résumé INCADAT en cours de préparation.