In the case of Qama v. Albania and Italy,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Guido Raimondi,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having deliberated in private on 4 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
4604/09) against the Republic of Albania lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Albanian national, Mr Flamur Qama (“the applicant”),
on 23 December 2008.
The Albanian Government (“the Government”) were
represented by their then Agent, Mrs E. Hajro and, subsequently, by Ms L.
Mandia of the State Advocate’s Office. The Italian Government were represented
by their then co-Agent, Mr N. Lettieri and, subsequently, by Ms P. Accardo.
The applicant alleged, in particular, that there
had been a breach of Articles 6 § 1 and 8 of the Convention on account of the
Albanian and Italian authorities’ failure to secure the right of contact with
his child in Italy.
On 21 September 2009 the application was
communicated to the respondent Governments. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1960 and lives in Durrës.
He has a son who was born on 25 August 1994. The son is currently 18 years old.
In September 1999 the applicant’s late spouse,
who was suffering from a serious disease, entered Italy irregularly, together
with the son, in order to obtain medical treatment. On an unspecified date the
applicant joined his spouse and son in Italy.
On an unspecified date in either August or
September 2002, following disagreements with his in-laws, the applicant was
expelled from Italy since he did not have a residence permit. His wife and son,
whose situation had not yet been regularised, continued to remain in Italy. His wife died on 7 October 2002.
A. Custody proceedings in Italy
On 17 October 2002, the applicant’s
sister-in-law, Z., filed an action with the Ancona Youth Court (“the Italian
court” - tribunale per i minorenni), seeking custody of the applicant’s child.
On 30 December 2002 a report of the local social
health centre stated that the child feared to return and live with the father
because of his alleged ill-treatment of the deceased mother. The report further
mentioned that the father had abandoned the child and the spouse without notice
at a time when they needed him most.
On 4 June 2003
the Italian court granted Z.’s request. It entrusted
Z. with the custody of the applicant’s child, under the supervision of the
Social Service of the city of Senigallia (affida il minore alla zia ...
sotto la vigilanza del Servizio Sociale del Comune di Senigallia...). It
further appointed the Mayor of Senigallia as the child’s temporary guardian (tutore
provvisorio). The court suspended the parents’ parental rights (dichiara
sospesa la potestŕ dei genitori) on the ground that they had allowed
the child to leave Albania without addressing the serious difficulties that he
would subsequently face. It further prohibited the child’s removal from Italian
territory. It assigned the International Social Service (“ISS” - an NGO) to
conduct an investigation into the applicant’s family situation. No provision
was made as regards the applicant’s visiting or contact rights in respect of
his child.
On 25 September 2003 the ISS, after trying to
contact the applicant, informed the Italian court that he refused to speak to
them. He simply requested that the child be returned to him. Following contacts
with his neighbours, the ISS declared that the applicant had re-married and his
wife was expecting a child. Being unemployed, he was living on his spouse’s
income.
On 22 March 2004 the Italian social services
provided the court with an update on the applicant’s child. By that time, the
child’s status in Italy had been regularised and his situation appeared to be balanced.
On 4 April 2005 the Italian
Ministry of Justice informed the applicant of the operative provisions of the
decision of 4 June 2003 and provided him with an update on his child as of 6
November 2004. The applicant was further informed of the possibility of lodging
an appeal with the Italian court, through a lawyer, against that decision.
On 21 December 2005 the letter was translated
and certified, in the applicant’s presence, by an Albanian notary public.
In a statement of 15 January
2007 before the Italian court the applicant’s child stated that he had not been
in contact or seen the applicant for a number of years. He did not wish to
speak to the applicant on the telephone because he had allegedly been
ill-treated by him in the past.
On 7 December 2007 the applicant’s
child confirmed to the Italian court the statement made on 15 January 2007.
B. Applicant’s efforts to contact his child in Italy
In a letter of an unspecified date, which was
sent by registered mail and was registered with the Italian court’s registry on
22 January 2007, the applicant stated that his in-laws had abducted his child
and that he had no contact with him. He stated that the child’s custody had
been entrusted to his aunt without the applicant’s prior consent and that he
sought the Italian authorities’ assistance in re-establishing contact with the
child.
In a letter,
which was sent by registered mail and was registered with the Italian court’s registry
on 22 February 2007 and signed by the applicant’s Albanian lawyer, the
applicant requested that his right of access to his child pursuant to the
Durrës District Court’s decision of 30 June 2006 (see paragraph 26 below) be enforced
by the Italian authorities. As he could not travel to Italy, he requested the Italian court to allow his child to travel to Albania, as indicated in the
Albanian court’s decision. He stated that he earned a monthly income of 700
euros, that he lived in a flat measuring
70 sq. m which offered appropriate accommodation, that he had a clean criminal
record, that his feelings and affection for his child had neither changed nor
ceased and that his efforts to contact the child had been met with the aunt’s
obstinate refusal. The applicant further stated that his request was aimed at
exercising the right of contact as established by the Albanian court on 30 June
2006, including unobstructed telephone contact with his child, or in any other
manner deemed appropriate by the Italian court. He further requested that the
child’s custody be entrusted to the Italian social services. However, he did
not seek the child’s permanent return to Albania. No power of attorney was
submitted to the Italian court’s registry.
It would appear that on 15 November 2007 the
applicant, relying on the Hague Child Abduction Convention and the Hague Jurisdiction
Convention (see paragraphs 36-43 below), requested the Italian Ministry of
Justice to institute proceedings for the validation of the Albanian court’s
judgment of 30 June 2006 and the enforcement of his right of contact with his
child.
C. Proceedings concerning the return and wrongful
retention of the applicant’s child in Albania
On 27 November
2002 the applicant lodged a criminal action with the Durrës District Court
(“the District Court”) pursuant to Article 127 of the Criminal Code (“CC”) and
Article 59 of the Code of Criminal Procedure (“CCP”), requesting the return of
his child who had allegedly been wrongfully retained in Italy.
On 13 January 2003 the District Court decided to
discontinue the case (vendosi pushimin e çështjes) on the ground that
the applicant’s action was unsubstantiated.
On 7 October 2003 the applicant filed another
action with the District Court accusing his in-laws of wrongful retention of
the child contrary to Article 127 of the CC.
On 29 December 2004 the District
Court found the applicant’s in-laws guilty as charged and sentenced them, including
Z., to a fine. This decision was upheld by the Court of Appeal and the Supreme
Court in 2005 and 2007 only in respect of Z. The proceedings took place in the
absence of Z., who apparently was represented by a lawyer. No reference was
made to the Italian court’s decision of 4 June 2003 (see paragraph 10 above).
On 11 April 2008, following
another action filed by the applicant pursuant to Article 127 of the Criminal
Code and Article 59 of the CCP, the District Court rejected the action. Having
notified Z. of the proceedings through the Italian Ministry of Justice, the
court found that she had been tried once and found guilty of the same offence,
in respect of which she had benefitted from an amnesty (see paragraph 23 above).
Relying on the Italian court’s decision of 4 June 2003, the District Court
ruled that Z. had not been involved in any wrongful removal of the child.
However, on 3 March 2009 the District Court
found Z. guilty of the criminal offence of wrongful retention of the child in
accordance with Article 127 of the CC and sentenced her to a fine. The decision
stated that even though Z. returned to Albania every summer, she deliberately
refused to bring the applicant’s child, in breach of that court’s decision of
30 June 2006 (see paragraph 26 below), in order to sever the links completely between
the applicant and his child. The proceedings took place in the absence of Z.,
who was represented by a lawyer of her own choosing.
D. Proceedings concerning the establishment of contact
with the child in Albania
On 30 June 2006,
following the applicant’s civil action, the District Court granted the
applicant’s request to meet with his child. It ordered Z. to allow the
applicant to see his child at least twice a year, between 1 and
15 August and between 27 December and 6 January. The proceedings were conducted
in the absence of Z., who had been notified of them by way of public notice. No
reference was made to the Italian court’s decision of
4 June 2003 (see paragraph 10 above). The relevant parts of the decision read
as follows:
“The claimant was informed that the child is being treated very
well by the aunt, the defendant [in this set of proceedings]; the child attends
school and has obtained good results. Motivated by paternal feeling, he
initially and unwittingly lodged the action seeking the return of his child
from the defendant.
During the proceedings, putting the child’s interest first, he
limited his action to requesting the court to rule on the right to have contact
with his child. He submitted before the court that he earns a good salary, that
he has founded a new family and that he has a home and a child from his second
marriage.
Pursuant to Article 155 of the Family Code, the court sought
the opinion of a social worker. Having regard to Article 255 of the Family
Code, the claimant’s action should be accepted and his right to meet with the
child, who is being cared for by the aunt, should be enforced during the school
holidays.”
On 27 November 2006 an execution writ was issued
in respect of the District Court’s decision. The local bailiff was entrusted
with its enforcement.
On 24 July 2008 the District Court rejected the
applicant’s action to have the decisions of 29 December 2004 and 30 June 2006
recognised pursuant to the Hague Child Abduction Convention and the Hague Jurisdiction
Convention on the ground that those decisions were directly enforceable in Albania.
On 3 March 2009 the District Court ordered Z. to
allow the applicant to meet with his child. The decision stated that the applicant
could not be denied such a right in so far as his parental responsibility had
not been revoked. However, it further stated that the applicant should find the
legal means to secure the enforcement of this judgment, the court being unable
to ensure that he would obtain a visa for Italy and be able to go there. It
discontinued the proceedings as regards the applicant’s claim for the return of
his child, the applicant having withdrawn that claim.
E. Applicant’s correspondence with Albanian
institutions
From 2003 to 2009 the applicant sought the
assistance of the relevant Albanian authorities (the Ministry of Interior, the
Ministry of Justice, the Ministry of Foreign Affairs, the Ombudsperson (Avokati
i Popullit), the Prime Minister’s Office, the President’s Office) in enforcing
his right of contact with his child.
On 6 July 2005 the General Prosecutor’s Office
sought the assistance of the Italian Interforce Police Liaison Office in Albania (“the Interforze”), as regards the status of the applicant’s child in Italy. On 8 July 2005 the Interforze informed the General Prosecutor’s Office of the Italian court’s
judgment of 2003.
In September 2006 the Ministry
of the Interior stated that it was beyond its jurisdiction to secure the return
of the child to Albania or the fulfilment of other requests made by the
applicant in so far as the child’s custody had been entrusted to Z. on the
basis of the Italian court’s decision.
In 2002, 2006 and 2008 the Ministry of Foreign
Affairs informed the applicant that the Albanian consulate in Milan had been asked
to follow his case.
On 29 January 2009, following a request for
information made by the Ombudsperson on the applicant’s case, the Ministry of
Justice responded, in so far as relevant, as follows:
“The Ministry of Justice has been in intensive contact with [Mr
Qama] and have expressed their wish to resolve his problem. He has asked the
Ministry of Justice to enforce the Durrës District Court’s decision of 30 June
2006. The Ministry of Justice, together with the Bailiff Office Directorate, have
repeatedly informed Mr Qama that there exists no legal basis to request the
Italian authorities to recognise and enforce an Albanian civil court’s
decision, since Albania is not a party to any international agreements which
govern the recognition and enforcement of Albanian civil court decisions. ...
The Ministry of Justice has proposed that Mr Qama enquire with the Ministry of
Foreign Affairs (e ka orientuar Z. Qama që t’i drejtohet Ministrisë së
Punëve të Jashtme).
On 16 February 2009 the
applicant was informed of the response of the Ministry of Justice.
II. RELEVANT INTERNATIONAL LAW
A. Convention of 25 October 1980 on the Civil Aspects
of International Child Abduction (“the Hague Child Abduction Convention”)
The Hague Child
Abduction Convention entered into force in respect of Albania on 1 August 2007 and in respect of Italy on 1 May 1995. Under Article 1, its objects are
twofold, namely:
“a) to secure the prompt return of children
wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access
under the law of one Contracting State are effectively respected in the other
Contracting States.”
Under Article 5 “rights of custody” shall
include rights relating to the care of the person of the child and, in
particular, the right to determine the child’s place of residence and, “rights
of access” shall include the right to take a child for a limited period of time
to a place other than the child’s habitual residence.
The duties under the Hague Child Abduction
Convention are discharged by a Central Authority in accordance with its Article
6. The Ministry of Justice, Department of Juvenile and Family Law, has been
designated as the Central Authority in respect of Albania and the Ministry of
Justice, Department of Juvenile Justice (Dipartimento per la Giustizia
Minorile) is the Italian Central Authority.
Under Article 7, either directly or through any
intermediary, the Central Authority is tasked with taking the following
measures towards achieving the objects of the Hague Child Abduction Convention:
“a) to discover the whereabouts of a child who has
been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice
to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to
bring about an amicable resolution of the issues;
d) to exchange, where desirable, information
relating to the social background of the child;
e) to provide information of a general character as
to the law of their State in connection with the application of the Convention;
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 organising or
securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or
facilitate the provision of legal aid and advice, including the participation
of legal counsel and advisers;
h) to provide such administrative arrangements as
may be necessary and appropriate to secure the safe return of the child;
i) to keep each other informed with respect to the
operation of this Convention and, as far as possible, to eliminate any
obstacles to its application.”
Article 8 recognises a person’s right to make an
application for the return of a child, who has been removed or retained in
breach of custody rights, to the Central Authority of the child’s habitual
residence or of another Contracting State.
Article 21 recognises a person’s right to make
an application for the effective exercise of rights of access in the same way
as an application for the return of the child. It states that:
“An application to make arrangements for organising or securing
the effective exercise of rights of access may be presented to the Central
Authorities of the Contracting States in the same way as an application for the
return of a child.
The Central Authorities are bound by the obligations of
co-operation which are set forth in Article 7 to promote the peaceful enjoyment
of access rights and the fulfilment of any conditions to which the exercise of
those rights may be subject. The Central Authorities shall take steps to
remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through
intermediaries, may initiate or assist in the institution of proceedings with a
view to organising or protecting these rights and securing respect for the
conditions to which the exercise of these rights may be subject.”
As regards Article 21, the Explanatory Report by
Ms Elisa
Pérez-Vera on the drafting of the Hague Child Abduction Convention, which is to
be found at http://www.hcch.net/upload/expl28.pdf,
states, in so far as relevant, the following:
“...it must be recognised that the Convention does not seek to
regulate access rights in an exhaustive manner; this would undoubtedly go
beyond the scope of the Convention’s objectives. Indeed, even if the attention
which has been paid to access rights results from the belief that they are the
normal corollary of custody rights, it sufficed at the Convention level merely
to secure co-operation among Central Authorities as regards either their
organisation or the protection of their actual exercise.”
B. Convention of 19 October 1996 on Jurisdiction,
Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental
Responsibility and Measures for the Protection of Children (“the Hague
Jurisdiction Convention”)
The Hague
Jurisdiction Convention entered into force in respect of Albania on 1 April 2007. Italy signed the Hague Jurisdiction Convention on 1 April 2003, no
ratification having taken place to date. Its aim is to establish common
provisions in respect of jurisdiction, applicable law, recognition and
enforcement of measures for the protection of children.
C. Council of Europe Convention on Contact Concerning
Children (“the Contact Convention - CETS No. 192)
The Contact Convention entered into force in
respect of Albania on 1 September 2005. Italy signed the Contact Convention on
15 May 2005, no ratification having taken place to date. Its object is to
determine general principles to be applied to contact orders, to fix
appropriate safeguards and guarantees to ensure the proper exercise of contact
and the immediate return of children at the end of the period of contact and to
establish co-operation between central authorities, judicial authorities and
other bodies in order to promote and improve contact between children and their
parents, and other persons having family ties with children.
III. RELEVANT DOMESTIC LAW
A. Albanian domestic law
1. Constitution of Albania
Article 122 states that an “international
agreement, which has been ratified, is part of the domestic legal order...”. Such
international agreement is directly applicable and prevails over domestic
legislation with which it conflicts.
Article 142 § 3 provides that “State bodies
shall comply with judicial decisions.”
2. Family Code
Article 218 of the Family Code provides that
“parents may request the court to secure return of their minor child, when he
does not leave with them or is being unjustly retained by other persons.”
3. Criminal Code
Article 127 of the CC sanctions the wrongful
removal of the child from, inter alia, the person who exercises the
parental authority as a petty offence (kundërvajtje penale) punishable
by a fine or a term of six-months’ imprisonment.
4. Code of Criminal Procedure (CCP)
Article 59 of the CCP establishes that a victim
(i dëmtuari akuzues) may bring a private prosecution and seek damages
from an individual who has committed one of the offences referred to therein.
Article 467 of the CCP stipulates that court
decisions which order the payment of a fine shall be executed by the bailiff’s
office.
B. Italian domestic law
1. Civil Code
Article 330 of the Civil Code provides:
“The court may declare parental rights forfeit if the parents
do not perform or neglect the obligations inherent in their parental role or
abuse the powers related thereto causing serious detriment to the child.
In such eventuality, the court may, if there are serious grounds
for so doing, order the child’s removal from the family home.”
Article 332 of the Civil Code reads:
“The judge may restore parental authority when the reasons
justifying its forfeiture have ceased to exist and there is no risk of harm to
the child.”
Law no. 149 of 28 March 2001 has amended certain
provisions of Book I, Part VIII, of the Civil Code and of Law no. 184/1983. Article
333 of the Civil Code, as amended by section 37(2) of Law no.149/2001 provides:
“Where the conduct of one or both parents is not such as to
give rise to their parental rights being declared forfeit under Article 330,
but is nonetheless detrimental to the child, the court may adopt any measure
that is appropriate in the circumstances and may even order the child’s removal
from the family home or the removal of the parent or partner who has been
ill-treating or abusing the child.
These measures may be revoked at any time.”
Article 336 of the Civil Code, as amended by
section 37(3) of the same Law, provides:
“The measures indicated in the preceding Articles shall be
adopted following an application by the other parent, a family member or the
public prosecutor and, where prior decisions are being revoked, also by the
parent concerned. The court shall deliberate in private session and give a
reasoned decision after having gathered information and heard representations
from the prosecutor’s office. If the measure is being sought against one of the
parents, that parent must be heard. In cases of emergency, the court may adopt,
even of its own motion, interim measures in the interests of the child.
In respect of the decisions referred to in the preceding
paragraphs, the parents and the child shall be assisted by a lawyer,
remunerated by the State in cases provided for by law.”
Article 337 of the Civil Code
reads:
“The guardianship judge shall supervise compliance with the
conditions imposed by the court for the exercise of parental authority and for
the administration of assets.”
Decisions of the youth courts
made in accordance with Articles 330 and 333 of the Civil Code are rendered in
non-contentious proceedings (volontaria giurisdizione). They are not
final decisions and can therefore be revoked at any time. No appeal lies
against these decisions, but either party concerned may lodge an application (reclamo)
with the Court of Appeal for a review of the situation giving rise to the
decision.
2. Code of Civil Procedure
Article 125 of the Code of Civil Procedure reads
as follows:
“Save as otherwise provided for by law, a statement, a claim, a
plea, a counter-plea or an order must state the name of the court to which it
is addressed, [full details of] the parties, the object of and reasons for the
request, the submissions or the claims, and the original, as well as the copies
to be served, must be signed by the party, if the latter decides to appear
before the court in person, or by the lawyer.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the Albanian and
Italian authorities did not secure his right of contact with his child in
breach of Articles 6 § 1 and 8 of the Convention.
As the master of the characterisation to be
given in law to the facts of the case, the Court considers it appropriate to
examine the applicant’s complaints under Article 8 of the Convention alone.
Whilst that Article contains no explicit procedural requirements, it requires
that the decision-making process leading to measures of interference must be
fair and afford due respect to the interests safeguarded by that Article (see Šneersone
and Kampanella v. Italy, no. 14737/09, § 56, 12 July 2011).
Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.
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.”
A. Admissibility
1. In respect of Italy
The Italian Government argued
that the applicant had not exhausted domestic remedies. In the first place, he
should have lodged an action for the nullity of, or an appeal against, the Italian
court’s decision of 4 June 2003 in accordance with Article 125 of the Code of
Civil Procedure and Articles 332, 333 and 336 of the Civil Code. Secondly, in
so far as the applicant could complain about the guardian’s refusal or his
child’s refusal to have contact with him, he should have lodged a civil action
with the guardianship judge in accordance with Article 337 of the Civil Code.
The applicant did not make any comments.
An applicant must comply with the applicable
rules and procedures of domestic law, failing which an application lodged with
the Court is likely to fall foul of the condition laid down in Article 35 (Ben
Salah Adraqui and Dhaime v. Spain (dec.), no. 45023/98, 27 April 2000). In
the instant case, the Court considers that the applicant’s letters of 22
January and 22 February 2007 cannot amount to a legal action seeking either
the nullity of the Italian court’s decision of 4 June 2003 or an appeal against
that decision. Furthermore, those letters failed to comply with the domestic
law requirements, particularly Article 125 of the Italian Code of Civil
Procedure. They were signed by an Albanian lawyer, who did not appear to have a
power of attorney issued by the applicant (see paragraph 18 above).
In these circumstances, the applicant’s
complaint against Italy should be rejected for non-exhaustion of domestic
remedies in accordance with Article 35 §§ 1 and 4 of the Convention. The Court,
however, observes that nothing prevents the applicant from availing himself of
the legal remedies under the Italian law, having regard to the fact that
decisions of Italian youth courts are not final and can be revoked at any time
(see paragraph 56 above).
2. In respect of Albania
(a) Compliance with the six-month rule
The Albanian Government argued that the
application had been submitted out of time, the last decision having been taken
on 30 June 2006.
The applicant did not make any comments.
Under Article 35 § 1 of the Convention “the
Court may only deal with the matter...within a period of six months from the
date on which the final decision was taken.” The six-month rule does not apply
to situations which give rise to a continuing violation of Convention rights
(see, inter alia, Iordache v. Romania, no. 6817/02, § 50, 14
October 2008).
In the instant case, the applicant is still
seeking to enforce his right to have contact with his child, as recognised by
the Albanian court. Between 2006 and 2009 he repeatedly requested the
enforcement of the decision of 30 June 2006 by enlisting the assistance of
competent Government and other institutions (see paragraphs 32-35 above). In
view of the above and having regard to the particular circumstances of this
case, the Court considers that no issue arises as regards compliance with the
six-month time-limit and, accordingly, dismisses the Government’s objection.
(b) Compliance
with the requirement to exhaust domestic remedies
The Albanian Government argued that the
applicant did not exhaust domestic remedies. He failed to lodge an action in
accordance with Article 59 of the Code of Criminal Procedure (“CCP”) or to
exhaust the remedies as required by the Contact Convention and the Hague Child Abduction Convention.
The applicant did not make any comments.
The Court notes that an applicant is required to
have recourse to remedies which are sufficiently certain not only in theory but
also in practice, failing which they will lack the requisite accessibility and
effectiveness (see Bajrami v. Albania, no. 35853/04, § 39, ECHR 2006-XIV
(extracts)).
In the instant case, the applicant
unsuccessfully lodged two actions under Article 59 of the CCP (see paragraphs 20 and 24 above). Having regard to the fate of his previous legal actions, the Court
considers that any further action under Article 59 of the CCP, as argued by the
Government, would have had no reasonable prospects of success.
Furthermore, assuming that the Hague Child
Abduction Convention and the Contact Convention provided a domestic legal basis
for another action by the applicant, the Court notes that, when one remedy has
been pursued, exhaustion of another remedy with essentially the same objective
is not required (see, inter alia, Micallef v. Malta [GC], no. 17056/06, § 58, ECHR 2009). In the instant case, the applicant had already
obtained a final Albanian court decision in his favour as regards his right of
contact with his child (see paragraph 26 above).
It follows that the applicant’s complaint cannot
be rejected for
non-exhaustion of domestic remedies and that the Albanian Government’s
objection should therefore be dismissed.
(c) Conclusion
The Court notes that the applicant’s complaint
against Albania 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
(a) The applicant
The applicant submitted that there had been a
breach of Article 8 of the Convention on account of the Albanian authorities’
failure to secure the exercise of his right of contact with his child.
(b) The Government
The Albanian Government initially submitted
that, having regard to the parents’ joint decision to go to Italy in September 1999 together with their child, no unlawful abduction of the applicant’s child
had taken place. In the domestic proceedings in Albania, while accepting that
the child should continue to remain in his aunt’s custody, the applicant had
requested the domestic court to enforce his right of access to his child. The
authorities had taken all procedural steps, notably through diplomatic means,
to secure that right. The enforcement order had been registered with the
bailiff, but its execution was objectively impossible since the child was
outside Albania’s jurisdiction. The authorities had tried to obtain information
about the child’s location and welfare in 2004. They invited the applicant to
make a request to the Central Authority pursuant to the Hague Child Abduction
Convention.
As regards the decision of 3 March 2009 the
Albanian Government stated that the domestic courts gave a two-year time-limit
to the defendant to comply with that decision. Since the time-limit had not
lapsed by the time they had submitted their observations on 6 November 2009,
they contended that no issue of non-enforcement arose. Moreover, the domestic
legislation offered other legal means, namely mediation and reconciliation, for
the solution of such cases.
2. The Court’s assessment
The Court notes that the mutual enjoyment by
parent and child of each other’s company constitutes a fundamental element of
“family life” within the meaning of Article 8 of the Convention (see, inter
alia, Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 125, 1 December 2009).
. Even though the primary object of
Article 8 is to protect the individual against unjustified interference by
public authorities, there are, in addition, positive obligations inherent in
effective “respect” for family life (see, amongst others, Maumousseau
and Washington v. France, no. 39388/05, § 83, 6 December 2007). In both contexts, regard must be had to the
fair balance which has to be struck between the competing interests of the
individual and of the community as a whole; in both contexts the State enjoys a
certain margin of appreciation (see, amongst others,
Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I).
. In carrying out this balancing
exercise, the Court will attach particular importance to the best interests of
the child, which, depending on their nature and seriousness, may override those
of the parent. In particular, a parent cannot be entitled under Article 8 to
have such measures taken as would harm the child’s health and development (see,
for example, Sommerfeld v. Germany [GC], no. 31871/96, §
64, ECHR 2003-VIII (extracts); and Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 134, ECHR 2010).
Turning to the facts of the present case, on 30
June 2006 the Albanian court accepted the applicant’s request to see his child
twice a year. The court ordered Z. to comply with the Albanian court’s decision.
An execution writ was issued and the bailiff was ordered to secure its
enforcement. The Court
notes that, while the Albanian court’s decision of 30 June 2006 lacked clarity
as regards the modalities of contact between the applicant and his child, its
effects are to be understood to extend solely within the jurisdiction of
Albania within the meaning of Article 1 of the Convention.
It has not been disputed by the parties that the
applicant has been unable to see his child subsequent to the delivery of the
Albanian court’s decision. The issue in the present case, therefore, is the
scope of the Albanian authorities’ positive obligations, if any, to enforce the
applicant’s right of contact in respect of his child.
In this connection, the Court notes that the custody
of the child was awarded to the child’s aunt, Z., by virtue of an Italian court’s
decision in 2003. At no stage has the applicant asked the Italian court to
modify the 2003 custody decision, let alone to grant him contact or visiting
rights.
Furthermore, the applicant does not allege that
the child was abducted or unlawfully retained in Italy. Although the Albanian
courts found that Z. had unlawfully retained the child, it is questionable whether
they appreciated the true nature and scope of the custody decision already taken
by the Italian court, since no reference was ever made to it.
Moreover, in cases where an applicant’s child was
not within a respondent State’s jurisdiction and, irrespective of whether
proceedings under the Hague Child Abduction Convention had been instituted by
the applicant and whether custody rights have been awarded, the Court has found
that that applicant was required to bring proceedings for the exercise of his
access, contact or visiting rights in the respondent State within whose
jurisdiction the child was to be found. For example, in Deak v. Romania and the United Kingdom, no. 19055/05, 3 June 2008, where the applicant instituted
proceedings under the Hague Child Abduction Convention in Romania and the
United Kingdom concerning the unlawful removal of the son by the child’s mother
from Romania to the United Kingdom, the Court found that in so far as the
proceedings before the Romanian courts did not directly determine the question
of the applicant’s access rights, which had previously been upheld by a
Romanian court decision, the applicant, who did not have the custody of the
child, could have applied to the English courts for an extension of his access
rights or for a modification of the manner in which they were exercised
(paragraph 69). In Stenzel v. Poland (dec.), no. 63896/00, 28 February
2006, even though the Polish courts did not divest the applicant of his
parental rights, in the absence of proceedings brought under the Hague Child
Abduction Convention, the Court found, in respect of the applicant’s access
rights, that he had never applied under that Convention to the German
authorities for assistance in securing the right to visit his child in Germany.
In the light of the above case-law and having
regard to the particular circumstances of the present case, Article 8 cannot be
understood as extending to an obligation for a respondent State to secure an
applicant contact when the child has moved to another jurisdiction and is
outside that State’s jurisdiction (see, for example, Stenzel, cited
above). Moreover, Article 8 of the Convention, read in the light of the Hague
Child Abduction Convention, does not impose on national authorities positive
obligations to secure the return of the child if the applicant holds only
contact or visiting rights (see R.R. v. Romania (no. 1), no. 1188/05, § 164, 10 November 2009; contrast Bajrami, cited
above, where the respondent State had positive obligations to secure the
enforcement of a custody judgment given in the applicant’s favour; contrast Eberhard
and M. v. Slovenia, no. 8673/05 and 9733/05, 1 December 2009 and Siemianowski v. Poland, no. 45972/99,
6 September 2005, in which the respondent States’ positive obligations to
secure the enforcement of the access arrangement, which had not been ordered
within the framework of the Hague Child Abduction Convention, lay entirely within
their jurisdiction).
The Court therefore concludes that, in so far as
both parents willingly agreed to travel with the child to Italy and in so far
as the child remained in Italy on the strength of the lawful order given by an Italian
court which did not award the applicant custody rights, there was no positive
obligation on Albania to take steps to secure the enforcement of the applicant’s
contact rights with his child as recognised by an Albanian court decision. The
applicant should have lodged an action with the Italian court to obtain contact
or visiting rights in respect of his child.
There has accordingly been no breach of Article
8 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares admissible the complaint under
Article 8 of the Convention in respect of Albania and the remainder of the
application concerning Italy inadmissible;
2. Holds that there has been no violation of
Article 8 of the Convention in respect of Albania.
Done in English, and notified in writing on 8 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı, Ineta
Ziemele
Deputy Registrar President
