CASE

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Case Name

Tapia Gasca et D. c. Espagne (Requête No 20272/06)

INCADAT reference

HC/E/1291

Court

Name

Cour européenne des droits de l'homme

Level

European Court of Human Rights (ECrtHR)

Judge(s)
Josep Casadevall (président) ; Elisabet Fura, Corneliu Bîrsan, Boštjan M. Zupančič, Alvina Gyulumyan, Ann Power (juges) ; Alejandro Saiz Arnaiz (juge ad hoc) ; Stanley Naismith (greffier adjoint de section).

States involved

Requesting State

SPAIN

Decision

Date

22 December 2009

Status

Final

Grounds

European Convention on Human Rights (ECHR)

Order

-

HC article(s) Considered

1 2 3 6 7 8 11 12 13(1)(a) 13(1)(b) 13(2) 13(3) 12(2) 12(1)

HC article(s) Relied Upon

-

Other provisions
Convention européenne des Droits de l'Homme ; Constitution espagnole ; Loi organique 1.1996 du 15 janvier 1996 sur la protection juridique des mineurs ; Convention des Nations Unies du 20 novembre 1989 sur les droits de l'enfant; Convention hispano marocaine de coopération judiciaire, reconnaissance et exécution des décisions judiciaires en matière de garde, de droit de visite et de restitution de
Authorities | Cases referred to
Ignaccolo-Zenide c. Roumanie, no 31679/96, § 94, CEDH 2000-I ; Monory c. Roumanie et Hongrie, no 71099/01, § 72, 5 avril 2005 ; Bianchi c. Suisse, no 7548/04, § 78, 22 juin 2006 ; Iglesias Gil et A.U.I., § 51 ; Paradis c. Allemagne, (déc.), no 4783/03, 15 mai 2003 ; Maire, § 74 ; Pini et autres c. Roumanie, nos 78028/01 et 78030/01, § 175, CEDH 2004-V ; Hokkanen c. Finlande, 23 septembre 1994, § 58, série A no 299-A ; Winterwerp c. Pays-Bas, 24 octobre 1979, § 46, série A no 33.

INCADAT comment

Inter-Relationship with International / Regional Instruments and National Law

European Convention of Human Rights (ECHR)
European Court of Human Rights (ECrtHR) Judgments

SUMMARY

Summary available in EN | FR | ES

Facts

The case concerned a child born in 1994 to a Moroccan father. The mother suffered violence by the father, and accordingly applied for separation.

In June 1996, a judge ordered the Directorate General of the Guardia Civil to prevent the child from leaving the country.

On 24 February 1997, the competent court at first instance awarded custody of the child to the mother, with shared parental authority, and the father had a right of accompanied access. The judgment barred the father from leaving the country, noted his violence, but dismissed the application for surrender of the child's passport.

On 20 April 1997, the father failed to return the child to the mother at the end of an access period.

On 21 April, the Court at first instance ordered a search of the father's residence, repeated the bar on leaving the country and alerted the border posts.

Pursuant to the father's abduction of the child, the mother brought several actions.

At the end of administrative litigation, the mother was awarded 12 million Pesetas of indemnification by the Spanish State owing to the failure to perform in due time the order to close the borders. The mother brought several criminal complaints in Spain against the father, his two brothers and his parents. Several cases were initiated, which resulted in several provisional orders of nolle prosequi and several resumptions.

The mother also initiated numerous investigations in Morocco.

In June 1998, a Moroccan judge ordered the child's return to Spain. That decision was not put into effect, however, as the child could not be located. Several people were criminally convicted in the case.

Starting in 2001, the mother brought new criminal complaints. On this basis, Interpol Finland and Interpol France were involved. An international warrant was issued for the arrest of the father, but not of his brothers and parents.

In 2002, the mother informed the Spanish Ministry of Justice that according to her information, her daughter was deceased, and asked for official checks. No information regarding this point was discovered to the ECrtHR, to which the mother applied in her own name and in her daughter's name in 2006. The mother complained that the Spanish authorities had not been diligent either in preventing the abduction or in pursuing return of the child.

The criminal proceedings against one of the brothers eventually resulted in a final order of nolle prosequi in 2006. The mother appealed in vain.

In 2005, the mother's constitutional claim of amparo was dismissed in Spain for manifest lack of merit, on the grounds that the mother merely asserted her disagreement with the decisions delivered by the ordinary Courts.

By the date of the ECrtHR's decision in 2009, the mother had been found to be permanently and completely disabled, owing to her mental condition as a result of disappearance of her daughter, whom she had not seen since 1997.

Ruling

Unanimous: no breach of Article 8 of the European Convention on Human Rights (ECHR). There was no separate issue concerning the claims based on Articles 6 and 13. The authorities' lack of diligence in preventing the abduction was admittedly manifest but had been indemnified by the Spanish authorities. The authorities had not been lacking in diligence regarding the child's return, despite the absence of results in this respect.

Grounds

European Convention on Human Rights (ECHR)


The Court pointed out that the purpose of Article 8 ECHR was "mainly to protect the individual against arbitrary interference by the public authorities" and generated "in addition, affirmative obligations inherent in effective "respect" for family life. In either case, regard [needed] to be had to the necessary fair balance between the competing interests of the individual and of the community as a whole; likewise, in both cases, the State [enjoyed] a measure of discretion". Article 8 also implied "entitlement for a parent to measures suitable to reunite him or her with the child and the obligation for the domestic authorities to take them", and the State's obligations were to be interpreted in the light of the 1980 Hague Child Abduction Convention and the United Nations Convention on the Rights of the Child of 20 November 1989, with the adequacy of such measures being judged by the speed of their implementation.

The Court noted that the preamble to the Hague Convention provided that "the interests of children are of paramount importance in matters relating to their custody" and that it was necessary to "protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access", and stressed that these provisions, considered in the light of Article 7, constituted the object and purpose of the Convention. It pointed out that in this respect, "the adequacy of a measure is judged by the speed of its implementation".

The Court noted that for the mother and her daughter (who was in her custody), "continuing to live together [was] a fundamental matter of family life, within the meaning of the first paragraph of Article 8 of the Convention".

It observed that the mother complained of a lack of diligence regarding both prevention of the abduction and return of the child, and considered that the issue was whether "in the light of the obligations based on both domestic law and international law, the Spanish authorities [had] exercised adequate and sufficient efforts to enforce the right [to respect for family life]". It added that Morocco was not a party to the Hague Convention but that both States were parties to the United Nations Convention on the Rights of the Child and to the Spanish-Moroccan Convention on judicial cooperation, the recognition and enforcement of custody and access decisions, and the return of minors of 30 May 1997.

Author of the summary: Aude Fiorini

INCADAT comment

European Court of Human Rights (ECrtHR) Judgments