Descargar texto completo EN

Nombre del caso

Eskinazi and Chelouche v. Turkey (Application No 14600/05)

Referencia INCADAT

HC/E/TR 742



Tribunal Europeo de Derechos Humanos (TEDH)

Estados involucrados

Estado requirente


Estado requerido




6 December 2005




Convenio Europeo de Derechos Humanos (CEDH) | Cuestiones procesales



Artículo(s) del Convenio considerados

9 13(1)(b) 13(2) 14 15 16 20 30

Artículo(s) del Convenio invocados en la decisión


Otras disposiciones
Convention on the Rights of the Child; International Covenant on Civil and Political Rights; Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe; Turkish Judgment Enforcement Code; Turkish Code of Civil Procedure; Israeli Law of 1984; Rabbinical Courts (Marriage and Divorce) Act; Israeli Family Courts Act; Israeli Mental Capacity and Guardianship Act of 1964
Jurisprudencia | Casos referidos


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 disponible en EN


The case related to a girl born in 2000 in Israel to a Franco-Turkish mother and a Franco-Israeli father. The girl possessed French, Israeli and Turkish nationalities. The parents were married and travelled frequently with their daughter between the three countries.

On 8 April 2004 the mother took her daughter to Turkey for a ten day stay with the consent of the father. She then decided that she and her daughter would not be returning. Shortly after, the mother and father filed for divorce in Turkey and Israel respectively.

On 29 April 2004 the Family Affairs Court in Istanbul awarded interim custody to the mother, though this was subsequently withdrawn on 9 July 2004, following an application on which reliance was placed on Article 16 of the 1980 Hague Child Abduction Convention.

On 16 May 2004 the Tel Aviv Rabbinical Court ordered the child's return to Israel and prohibited the mother and daughter from leaving the territory of Israel for a period of one year. The father then sought the assistance of the Turkish Central Authority to bring about his daughter's return.

On 1 July 2004, following the request of the public prosecutor, (instructed by the Turkish Central Authority), the Istanbul Family Affairs Court prohibited the mother from leaving Turkey.

On 16 August 2004 the public prosecutor applied to the Istanbul Family Affairs Court for the return of the child to Israel. During the following hearings, the mother insisted her daughter had strong ties to Turkey and questioned the ability of the father to take care of the child. She also rejected the application of the 1980 Hague Child Abduction Convention, explaining that the father had agreed to the child's move to Turkey.

In turn, the father affirmed that his daughter's place of habitual residence was in Israel, relying notably on various official documents detailing the precise number of days the child had spent in the latter country.

On 25 October 2004 the Court found that the child's habitual residence prior to her removal was Israel and that all the requirements for the application of the Child Abduction Convention had been met.

On 18 February 2005 the mother appealed the return order on points of law. She notably contested the consideration given to the Israeli decision of 16 May 2004 by the Turkish Court, underlining that this decision had been taken in her absence and in accordance with religious law, as well as the finding made with regard to the child's habitual residence.

On 29 March 2005 the Court of Cassation upheld the decision of the Istanbul Family Affairs Court of 25 October 2004. The decision became final after the mother's application for rectification was rejected in September 2005. On 10 October 2005, the father sought the enforcement of the return order. In the meantime, criminal proceedings were brought against the father in Turkey because of an incident in February 2005 during a period of supervised contact.

On 20 April 2005 the mother lodged an application before the European Court of Human Rights (ECrtHR) on her own behalf and that of her daughter, on the basis of Articles 6 and 8 of the European Convention on Human Rights (ECHR). She affirmed that the return mechanism of the Child Abduction Convention could not be applied and that the best interests of the child had not been taken into account by the Turkish courts.

She also pointed out that a return to Israel would allow the Rabbinical Court to decide over the custody of her daughter, and that a religious court did not provide the necessary fundamental guarantees relating to public policy.

On 12 October 2005 the European Court of Human Rights requested the Turkish Government, under Rule 39 of its Rules of Court (interim measures), to refrain for the time being from taking action to return the child.


By a majority the Court declared the application to be inadmissible, on the basis of it being manifestly ill-founded; the Turkish authorities had not disregarded their obligations under Article 6 of the ECHR (right to fair trial) or violated the right to respect for family life guaranteed under Article 8 of the ECHR.


European Convention on Human Rights (ECHR)

- Article 8 of the ECHR (Right to Private and Family Life)

The Court noted that the mother and daughter's mutual enjoyment of each other's company constituted a fundamental element of family life, and that the 1980 Hague Child Abduction Convention return proceedings constituted an interference in that family life for the purposes of Article 8(2) of the ECHR. It therefore had to be determined whether the interference was "necessary in a democratic society" within the meaning of the latter provision.

In this, the Court held the decisive issue was whether the necessary fair balance had been struck between the competing interests of the child, her two parents and public policy, within the limits of the margin of appreciation enjoyed by the States.

The Court found that the mother's complaint that the decision of the Rabbinical Court was delivered in her absence, had no decisive weight. This was because the latter decision did not concern the merits of custody rights and was used to reach factual conclusions in the determination of the 1980 Hague Child Abduction Convention application.

The Court accepted that the concept of the child's best interests should be paramount in the procedures put in place by the 1980 Hague Child Abduction Convention. However, it could not be overlooked that among the elements of that concept a child should not be removed from one of its parents and retained by the other.

The Court did not find any reason, in the light of Article 13(1)(b) of the 1980 Hague Child Abduction Convention, to believe that the Turkish courts had drawn arbitrary conclusions from the arguments submitted to them in the adversarial proceedings.

The Court further rejected the mother's arguments as regards the situation in Israel. In this it noted that if the child was accompanied by relatives, her personal situation would not give greater cause for alarm than that of other children living in Israel. Moreover, the Court noted that the family had lived in Israel for years without trouble and the child herself had been born there.

As regards the complaint that the child had not been heard, the Court noted that it was not its task to substitute its own assessment of the facts and the evidence for that of the Turkish courts. However, it noted that having regard to the child's age, it found it plausible that hearing the child would not have served any purpose.

- Article 6 of the ECHR (Right to a Fair Trial)

The Court noted that the Turkish authorities had to assist with the child's return, unless objective factors caused them to fear that the child and, if applicable, her mother risked suffering a "flagrant denial of justice". (The latter being the applicable standard as Israel is not a Council of Europe State, subject to the ECHR).

The conclusion of the Court was that it was not persuaded the Turkish authorities had sufficient material in their possession to suggest that the possible shortcomings in proceedings that the applicants might face in Israel might amount to a "flagrant denial of justice".

Procedural Matters

The Court equally held by a majority to lift the interim measure indicated to the Turkish Government under Rule 39 of the Rules of Court.

Author of the summary: Peter McEleavy

INCADAT comment

As regards the application of the ECHR where the return of a child to a non Council of Europe State is at issue see also: E.M. (Lebanon) v. Secretary of State for the Home Department [2008] UKHL 64, [2009] 1 A.C. 1198 [INCADAT Reference: HC/E/UK 994].

European Court of Human Rights (ECrtHR) Judgments

Protection of Human rights & Fundamental Freedoms

Preparation of INCADAT commentary in progress.