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Nombre del caso
Qama v. Albania and Italy (Application No 4604/09)
Referencia INCADAT
HC/E/IT 1198
Tribunal
Tribunal Europeo de Derechos Humanos (TEDH)
Estados involucrados
Albania
Italia
Fallo
8 January 2013
Definitiva
Convenio Europeo de Derechos Humanos (CEDH) | Derechos de visita - art. 21
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INCADAT comentario
Interrelación con instrumentos internacionales y regionales y Derecho interno
Fallos del Tribunal Europeo de Derechos Humanos (TEDH)
SUMARIO
Sumario disponible en
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Facts
In the summer of 2002, the father was expelled from Italy for immigration reasons. The mother and child remained. The mother died on 7 October 2002. On 17 October, the child's maternal aunt issued proceedings in Italy for custody of the child. This was granted on 4 June 2003. The order also suspended the parents' parental rights.
The father raised various criminal and civil proceedings in Albania, seeking the return of his child to Albania and contact. On 30 June 2006, the District Court at Durrës (Albania) made a contact order in favour of the father. On 27 November 2006, an execution writ was issued in respect of the District Court's decision.
On 24 July 2008, the District Court rejected the father's action to have the decisions of 29 December 2004 and 30 June 2006 recognised pursuant to the Hague Child Abduction Convention and the 1996 Hague Child Protection Convention on the ground that those decisions were directly enforceable in Albania.
On 15 November 2007, the father, relying on the Hague Child Abduction Convention and the 1996 Hague Child Protection Convention requested the Italian Ministry of Justice to institute proceedings for the validation of the order of 30 June 2006 and the enforcement of his right of contact.
On 16 February 2009, the father was advised by the Albanian Ministry of that there was no legal basis to request the Italian authorities to recognise and enforce an Albanian decision, since Albania was not a party to any international agreements which governed the recognition and enforcement of Albanian civil court decisions.
The father filed an application with the European Court of Human Rights (ECrtHR) against the Republic of Albania and against Italy lodged on 23 December 2008.
Ruling
Grounds
European Convention on Human Rights (ECHR)
The Court stated that the issue to be considered was "the scope of the Albanian authorities' positive obligations, if any, to enforce the applicant [father]'s right of contact in respect of his child".
The Court noted that the custody of the child had been awarded to the child's aunt, by virtue of an Italian court decision in 2003, and at no stage had the father asked the Italian courts to modify the latter decision, or to grant him access rights. Furthermore, the father had not alleged that the child had been wrongfully retained in Italy.
The Court held that in cases where an applicant's child was not within the jurisdiction of a respondent State, "the applicant was required to bring proceedings for the exercise of his access [...] rights in the respondent State within whose jurisdiction the child was to be found".
It noted that this was irrespective of whether proceedings had been instituted under the 1980 Hague Child Abduction Convention: Deak v. Romania and the United Kingdom, No 19055/05, 3 June 2008; Stenzel v. Poland (dec.), No 63896/00, 28 February 2006.
The Court held that "Article 8 of the ECHR could not be understood as extending to an obligation for a respondent State to secure an applicant contact when the child [had] moved to another jurisdiction and [was] outside that State's jurisdiction".
When read in the light of the 1980 Hague Child Abduction Convention, Article 8 of the ECHR did "not impose on national authorities positive obligations to secure the return of the child if the applicant [held] only [access] rights". The Court concluded that the father should have lodged an action with the Italian courts to obtain access rights in respect of the child. There had accordingly been no breach of Article 8 of the ECHR.
Rights of Access - Art. 21
See above.
Author of the summary: Peter McEleavy