CASO

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Nombre del caso

Ancel v. Turkey, Requête no 28514/04

Referencia INCADAT

HC/E/TR 1015

Tribunal

Instancia

Tribunal Europeo de Derechos Humanos (TEDH)

Estados involucrados

Estado requirente

Francia

Estado requerido

Turquía

Fallo

Fecha

17 February 2009

Estado

Definitiva

Fundamentos

Cuestiones relativas a la restitución

Fallo

Solicitud desestimada

Artículo(s) del Convenio considerados

-

Artículo(s) del Convenio invocados en la decisión

-

Otras disposiciones
Arts 6 and 8 del Convenio Europeo para la Protección de los Derechos Humanos y de las Libertades Fundamentales (CEDH)
Jurisprudencia | Casos referidos

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INCADAT comentario

Interrelación con instrumentos internacionales y regionales y Derecho interno

Convenio Europeo de Derechos Humanos (CEDH)
Fallos del Tribunal Europeo de Derechos Humanos (TEDH)

SUMARIO

Sumario disponible en EN | FR

Facts

The application related to a girl born in France in March 1994 to a French mother and Turkish father. The parents were not married. In 1995, during a vacation in Turkey, the mother was made to leave the child with the paternal family.

On 6 October 1995 the father was designated as guardian of the child by a Turkish court. In early 1996 the mother commenced legal proceedings in France. In early 1997 she issued custody proceedings in Turkey. These were twice struck out for lack of appearance by the mother or her representative. In proceedings in 1998 witnesses were heard and a lawyer was appointed for the child. On 1 October 1998 the mother was awarded custody.

On 2 February 1999 this decision was confirmed by the Court of Cassation. Steps for enforcement commenced in 2001 and continued into 2005. Criminal proceedings were started in Turkey in 2006. The French authorities then issued an international arrest warrant.

In March 2006 the father was stopped in Morocco and extradited to France. In proceedings before a criminal court in Colmar, he affirmed that the child was being educated in Cyprus. He was sentenced to 2 years imprisonment for abduction, a sentence increased on appeal to 3 years.

As a result of the criminal proceedings the Turkish authorities discovered that the mother had met the father in Turkey, and discovered his address, in early 2004. These facts had not been communicated to them.

In June 2007, as a result of information given by the father, the child was brought to France and reconciliation was attempted with the mother. This failed. In August 2007 the judge for children in Colmar placed the child in the care of the husband of a paternal aunt, living in London. The mother petitioned the ECHR on 25 June 2004.

Ruling

Application dismissed; there had not been a breach of Art. 6 or Art. 8 of the ECHR.

Grounds

Issues Relating to Return

The mother alleged a breach of Article 6(1) of the ECHR in light of the excessive period of time which had elapsed during the civil proceedings. She did not however specify the time period to be considered. The Court held that the period to be considered, which included the enforcement of the custody order, ran from 13 February 1997 to 15 June 2005.

However, it noted that, within this period, delays amounting to 3 years and 1 month were due to the mother. The Court held that the remaining period of 5 years and 3 months appeared reasonable given that the case had involved international collaboration and three levels of court. Whilst the case may not have appeared particularly complex at the outset, it became so as a result of the difficulties encountered during the enforcement stage.

The Court noted that whilst expedition was required in the handling of custody matters there had been no significant period of inactivity on the part of the Turkish authorities. Additionally, it was relevant that the mother had not advised the authorities of her meeting with the father in 2004. In the light of these factors the Court concluded that there had been no violation of Article 6(1).

The mother further argued that the failure to enforce the custody order led to a breach of the right to family life of both her and the child under Article 8 of the ECHR. The Court reiterated the core principles applicable in custody cases. In particular, it noted that the positive obligations which Art. 8 imposed on Contracting States had to be interpreted in the light of the 1980 Hague Convention.

The decisive issue was whether the national authorities had taken all the steps that could reasonably be expected of them. The Court concluded that they had. The primary problem had been the disappearance of the father and in this regard it was relevant that the mother had not divulged her meeting with the latter in 2004. There had therefore been no breach of Article 8.

INCADAT comment

European Court of Human Rights (ECrtHR) Judgments