AFFAIRE

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Nom de l'affaire

Bianchi v. Switzerland, Application No. 7548/04

Référence INCADAT

HC/E/CH 869

Juridiction

Nom

Cour européenne des Droits de l'Homme

Degré

Cour européenne des droits de l’homme (CourEDH)

États concernés

État requérant

Italie

État requis

Suisse

Décision

Date

22 June 2006

Statut

Définitif

Motifs

Objectifs de la Convention - Préambule, art. 1 et 2 | Questions procédurales

Décision

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Article(s) de la Convention visé(s)

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Article(s) de la Convention visé(s) par le dispositif

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Autres dispositions
Arts 6 and 8 CEDH
Jurisprudence | Affaires invoquées

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Publiée dans

-

INCADAT commentaire

Relation avec d’autres instruments internationaux et régionaux et avec le droit interne

Convention européenne des Droits de l’Homme (CEDH)
Jurisprudence de la Cour européenne des Droits de l'Homme (CourEDH)

RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The application related to a boy born in November 1999. He lived in Italy with his parents until they separated in June 2002 and he was removed to Switzerland by his mother. In September 2002 the father petitioned the Swiss authorities for the return of his son. Following a series of hearings which culminated in a judgment of the Federal Supreme Court in April 2003 the boy and mother returned to Italy.

In December 2003 during a contact visit the mother took the child back to Switzerland. On 6 January 2004 the father filed a return petition with the court of first instance in Willisau. On 28 January the father filed a criminal complaint which resulted in the mother receiving a 300 SFr (€191) fine.

On 21 February the father filed a petition with the European Court of Human Rights. On 3 May the Willisau court refused to order the return of the child finding that the child did not want to go back to Italy and that he had stronger links with the mother than the father On 12 July a court of appeal in Lucerne overturned the order of the Willisau court and ordered that the child be returned to Italy before 31 July.

On 30 July the mother's lawyer announced that the mother would not hand over the child or permit any further contact with the father until a challenge to the Federal Supreme Court had been heard. On 2 August the father contacted the prefecture in Willisau to have the decision of 12 July enforced.

On 10 August the prefecture ordered the local police to question the mother and to ascertain the circumstances surrounding the abduction. On 15 August the mother visited the local police station alone. She refused to divulge the child's location and stated that she could be contacted through her lawyer. The police did not detain her.

In September an arrest warrant was issued against the mother. Form 6 September surveillance measures commenced against the mother, members of the matrimonial family and connected people. On 15 October the Federal Supreme Court rejected the mother's challenge finding that the child did not face a grave risk of harm if returned [INCADAT Reference: HC/E/CH 793].

On 24 January 2006 the mother requested the revision of the Federal Supreme Court decision of October 2004 and petitioned for legal aid. On 15 February the court of appeal in Lucerne struck out this request. On 12 April a challenge to the Federal Supreme Court was similarly rejected [INCADAT Reference: HC/E/CH 840]. The location of the child remains unknown.

Ruling

The Court ruled unanimously that Switzerland had breached Article 8 of the ECHR in failing to take adequate measures to give effect to the aims and objectives of the 1980 Hague Convention in the eight months following the abduction. The Court also made an award of compensation to the father under Article 41 of the ECHR.

Grounds

Aims of the Convention - Preamble, Arts 1 and 2

The Court held that the Preamble of the 1980 Convention, considered in the light of Article 7 of that instrument and the non-exclusive list of measures to be taken by States to ensure the return of children, should be seen as constituting the aims and objectives of the instrument, in accordance with Article 31(1) of the Vienna Convention on the Law of Treaties. The Court further recalled that the adequacy of a measure was also to be judged by the rapidity with which it was put into effect and that measures relative to the attribution of parental authority, including the enforcement of decisions, should be treated with expedition. This was necessary for the passsage of time could have irredeemable consequences for the relationship between a child and an absent parent.

Procedural Matters

The Court was extremely critical of the manner in which the court of first instance at Willisau had responded to the initial application and had then decided the case. The Court questioned whether it had been appropriate to open a new procedure given the ruling of the Federal Supreme Court following the initial removal in April 2003. The four month delay which elapsed between the Willisau court being seised and the judgement was deemed not to be in accordance with the requirements of Article 11 of the Hague Convention. Furthermore the decision making in up-holding the Article 13 exception was called into question. The Court noted that many steps had been taken to discover the whereabouts of the child from September 2004 onwards, however, the Court expressed its surprise at the events of 15 August 2004 when the mother had presented herself at a local police station and was allowed to leave after announcing she would not disclose the location of the child. The Court held that the passivity of the Swiss authorities from the time of the abduction until 15 August 2004 did not accord with the aims and objectives of the Hague Convention and had led to the rupture of the relationship between the father and his son. For this reason there had been a breach of Article 8 of the ECHR. DAMAGES The father was awarded €15000 in respect of non-pecuniary damage and €5000 in respect of costs and expenses.

INCADAT comment

A summary of the first Tribunal fédéral decision, of 15 October 2004 may be found at: [INCADAT Reference : HC/E/CH 793]. A summary of the second Tribunal fédéral decision, of 12 April 2006 may be found at: [INCADAT Reference: HC/E/CH 840].

European Court of Human Rights (ECrtHR) Judgments