Judgment 15646/18

Applicant type Natural person
Number of applicants 1
Application no. 15646/18
Date 17/10/2023
Judges Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Egidijus Kūris,
 Pauliine Koskelo,
 Frédéric Krenc,
 Diana Sârcu,
 Davor Derenčinović
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Necessary (health and morals/rights and freedoms)
Type of privacy Procedural privacy; Relational privacy
Keywords Access to child
Facts of the case The applicant complained that the 2016 contact arrangement in respect of his child had been disproportionately reduced in a procedure which had lacked procedural safeguards.
AnalysisThe Court quickly determines that there has been an inference with applicant’s family life on account of the limits of access to his child, that this was prescribed by law and served one of the legitimate aims in Article 8 ECHR, without specifying which one, though presumably “health and morals” or rights and freedoms of others”.  As to the question of necessity, the Court recalls that the national authorities enjoy a wide margin of appreciation when deciding on custody matters, while a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life.

In this case, the domestic courts set a restrictive contact schedule between the applicant and his son. The Court reiterates that the State’s positive obligation to prevent the risk of recurrent violence in the context of domestic abuse includes (a) an obligation to respond “immediately” to complaints of domestic violence and to process them with special diligence; (b) to undertake an “autonomous”, “proactive” and “comprehensive” risk assessment of the treatment contrary to Article 3; and (c) once a risk to a victim of domestic violence has been identified, to take, as quickly as possible, preventive and protective operational measures that are adequate and proportionate to the risk. A proper preventive response often requires coordination between multiple authorities.

However, the ECtHR points out, neither the records nor the child protection authority’s decisions reflect any autonomous and comprehensive risk assessment or any measures, such as supervised contact or other forms of contact, which might have been adequate in order to maintain the applicant’s contact with his child without jeopardising the child’s and the mother’s safety, if relevant. Consequently, the Court cannot satisfactorily assess whether the reasons relied on by the domestic courts were “sufficient” for the purposes of Article 8 § 2 without at the same time determining whether the decision‑making process, seen as a whole, provided the applicant with the requisite protection of his interests. In addition, the Government did not provide any explanation for the delay in examining the applicant’s appeal (more than six months), which appears not to have been due to his conduct or to the complexity of the case, but rather to the courts’ own conduct .
Other Article violation? Yes, Article 6 ECHR
Damage awarded (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,900 (five thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
Documents Judgment