CASO

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Nombre del caso

Anghel v. Italy (Application No. 5968/09)

Referencia INCADAT

HC/E/IT 1232

Tribunal

Instancia

Tribunal Europeo de Derechos Humanos (TEDH)

Estados involucrados

Estado requirente

Rumania

Estado requerido

Italia

Fallo

Fecha

25 June 2013

Estado

Sujeto a apelación

Fundamentos

Convenio Europeo de Derechos Humanos (CEDH)

Fallo

-

Artículo(s) del Convenio considerados

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Artículo(s) del Convenio invocados en la decisión

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Otras disposiciones
Artículos 6, 8, 13, 14 y 41 del TEDH; Artículo 5 del Protocolo nº 7; Artículo 1 del Protocolo nº 12.
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)

Excepciones a la restitución

Protección de derechos humanos y libertades fundamentales
Protección de los derechos humanos y las libertades fundamentales

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The proceedings concerned a child born in Romania in March 2003. Following the birth, the mother occasionally worked in Italy for short periods of time. In 2005, after she had obtained a regular job there, the father agreed for the child to travel to Italy with the mother. A formal notarial deed of 26 April 2005 was signed to this effect.

In January 2006, the father travelled to Italy to bring the child back. The mother opposed the father's attempt at return. Upon returning to Romania alone, the father filed a criminal complaint against the mother. The father subsequently moved to Qatar.

On 6 December 2006, the father travelled to Italy to visit his son. On 13 December, father and son travelled to Romania. On 8 January 2007, the mother joined them. On 15 January 2007, they all travelled to Moldova to visit to the mother's family. On 20 January 2007, mother and child "disappeared".

On 2 April 2007, the father applied to the Romanian Minister of Justice as the Central Authority responsible for the 1980 Hague Child Abduction Convention for assistance in securing the return of his son, whom the child's mother had, he alleged, wrongfully removed to Italy on 20 January 2007.

The Bologna Prosecutor's Office initiated return proceedings before the Bologna Youth Court (Tribunale per i minorenni). On 6 July 2007, the Bologna Youth Court refused the application for return. It found that the child had not been wrongfully removed.

Notwithstanding this finding, the Court further assessed the implications a return would have had for the child, and considered that psychological harm would have ensued given that the child was integrated into Italian society, albeit with some problems. On the 6 August 2007, the Italian Ministry of Justice informed the Romanian Ministry of Justice that the decision could be appealed against through an appeal on points of law to the Court of Cassation.

The father sought to appeal the order dismissing his return application, but due to repeatedly being given incomplete or misleading information about the appeal procedure by authorities and lawyers, and erroneous advice as to procedural formalities by appointed legal aid lawyers, he was unable to do so within the time limit available (9 October 2008).

The father filed an application with the European Court of Human Rights (ECrtHR) on 24 January 2009 alleging a violation of Articles 6, 8, 13 and 14 of the ECHR, as well as under Article 5 of Protocol No 7 and Article 1 of Protocol No 12.

Ruling

The Court held unanimously that there had been a breach of Article 6 of the ECHR, no violation of the substantive aspect of Article 8 of the ECHR and that it was not necessary to examine the procedural aspect of Article 8.

Grounds

European Convention on Human Rights (ECHR)


Article 6 of the ECHR:
The father complained that his right to appeal against the decision of the Bologna Youth Court had been impaired by the delays in granting him legal aid, denying him an effective remedy as required by Article 13 of the ECHR. The Court held that the requirements of Article 13 were absorbed by the more stringent requirements of Article 6(1) of the ECHR and examined the complaint under the latter provision.

The Court noted that the "right to a court", of which the right of access is one aspect, is not absolute; it is subject to limitations including the conditions of admissibility for an appeal. But such limitations must not restrict or reduce a person's access in such a way or to such an extent that the very essence of the right would be impaired.

There is no obligation under the ECHR to make legal aid available for all disputes (contestations) in civil proceedings. But Article 6(1) "may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable to effective access to court, either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case".

Where legal aid is provided by domestic law, "the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6". The Court noted that "[a]n adequate institutional framework should be in place so as to ensure effective legal representation for entitled persons and a sufficient level of protection of their interests." "Assigning counsel to represent a party to the proceedings does not in itself ensure the effectiveness of the assistance. [...] It is also essential for the legal aid system to offer individuals substantial guarantees to protect those having recourse to it from arbitrariness".

Turning to the facts of the case the Court noted that it had to examine whether the State displayed diligence so as to secure for the father the genuine and effective enjoyment of his right to appeal under Article 6 and whether the errors, as a consequence of which his appeal was never lodged, were manifest and imputable to the legal aid lawyers and if necessary whether they were a result of a deficient framework. Two matters of concern transpired from the facts, namely the delays on the part of the Italian authorities and the information given to the father.

As regards the various delays attributable to the Italian authorities, the Court held that whilst it found it unjustifiable that the provision of certain simple pieces of information required up to and sometimes more than a month, it considered that given the generous time-limits applicable it could not be said that those delays alone, albeit regrettable, undermined the very essence of the father's right of access to court in order to lodge his appeal.

The Court did consider that the deficient and contradictory information given by the Council of the Bar Association and the Ministry of Justice, as to which remedy was available and which time-limit was applicable contributed substantially to the father's unsuccessful attempt to appeal.

As to the errors made by the appointed legal aid lawyers in respect of procedural formalities, the Court held that "such errors may, when critical to a person's access to court, and when incurable in so far as they are not made good by actions of the authorities or the courts themselves, result in a lack of practical and effective representation which incurs the State's liability under the Convention". In the present case, such errors were deemed to be fatal to the father's chances of appealing.

The Court held that "as a consequence of failings in the system itself, namely in the way the relevant bodies directed the [father] and particularly the failings of the appointed lawyers, the [father] lost all possibility of pursuing an appeal against the impugned decision". These failings "amounted to ineffective representation in special circumstances which incur[red] the State's liability under the Convention".

The Court concluded that the delay by the Italian authorities in providing relevant and correct guidance, coupled with the lack of practical and effective representation, impaired the very essence of the father's right of access to court in order to appeal against the judgment of the Bologna Youth Court. There had accordingly been a violation of Article 6(1) of the ECHR.

Article 8 or the ECHR:
The father further alleged a violation of Article 8 of the ECHR in that the Bologna Youth Court had exceeded its jurisdiction and competence under the Hague Child Abduction Convention and accordingly had interfered with his right to respect for his private and family life. And, a violation of Article 6 in that he had not been permitted to challenge certain evidence. The Court ruled that it was not necessary to consider the latter challenge given its previous findings under the same Article.

As regards Article 8, the Court held that the decision not to return the child constituted an interference with the father's right to respect for his family life. The decision was though "in accordance with the law" and pursued the legitimate aim of protecting the interests of others.

Turning to whether the interference was "necessary in a democratic society", the Court noted that when striking a balance between the competing interests at stake - those of the child and of the two parents - consideration had to be given to whether appropriate account had been taken of the child's best interests, within the margin of appreciation afforded to States in such matters.

The Court found that the conclusion that the child had not been wrongfully removed was essentially a matter of assessment of evidence falling within the exclusive competence of the national authorities. The Court accepted therefore that the Bologna Court's decision struck a fair balance between the competing interests at stake, giving appropriate account to the child's best interests. Accordingly, there had been no substantive violation of Article 8 of the ECHR.

Costs:
The Court awarded the father 14,000 Euros in respect of non-pecuniary damage and 3,000 Euros in respect of costs and expenses.

Author of the summary: Peter McEleavy

INCADAT comment

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