Judgement 17791/22

Applicant name A and others
Applicant type Natural person
Number of applicants 3
Country Italy
Application no. 17791/22
Date 07/09/2023
Judges Marko Bošnjak, président,
 Alena Poláčková,
 Krzysztof Wojtyczek,
 Péter Paczolay,
 Ivana Jelić,
 Erik Wennerström,
 Raffaele Sabato
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Positive obligation
Type of privacy Procedural privacy; realtional privacy
Keywords Contact father and children
Facts of the case A has two minor children, B and C. The first applicant did not recognize the children at the time of their birth. As he was in detention, he only lived with them for very brief periods. In 2016, the first applicant was admitted to the benefit of a witness protection program as a collaborator of justice in an investigation concerning a mafia-type criminal association of which he had been a part. Following this decision, the mother, D stopped visiting the first applicant in prison with their children. A subsequently filled for parental authority and access rights, but was unsuccessful.
AnalysisThere are several interesting discussions as to the admissibility of the case, which the ECtHR raises ex officio. First, it assesses whether the children, B. and C. can be represented in this case by the curator as victims, which the Court finds is possible. The father has consistently asked for contact rights with his children and the curator has likewise consistently asked the domestic authorities on behalf of the children to establish meaningful relationship between the children and the father. Also, the ECtHR assess whether there existed family life. On this point, it finds that Article 8 ECHR not only provides protection to already established family life, but also to potential family life. That is why this complaint falls to be considered under that provision. This is interesting, because in a recent case, it had no problem extraditing an immigrant with a child, because they had not established proper family ties.

As to the substance of the matter, the ECtHR first assesses the contact rights and the failure of the domestic authorities to effectuate those. On this point, the Court concludes that the national authorities did not quickly take all the measures that could reasonably be required of them to ensure respect for the right of access recognized to the first applicant by judicial decisions and to allow establishes a relationship between the applicants, and it notes that no control of the activity or lack of action of the authorities concerned was carried out by the national courts. Thus, there is a violation of Article 8 ECHR on this point.

In addition, the ECtHR finds a violation of Article 8 ECHR as to the procedural requirements implicit in that provision. It notes in particular that it took the domestic authorities almost four years to appoint a legal representative for the children, that consequently the children’s voices were not adequately heard and that there was overly long delay in establish contact between the children and their father. Hence, also under the procedural angel, there has been a violation of the right to privacy.
Other Article violation?
Damage awarded 8,000 EUR (eight thousand euros) to the first applicant, plus any amount that may be due on this sum as tax, for non-pecuniary damage;
8,000 EUR (eight thousand euros) to each of the second and third applicants (sum intended to be held in trust by their trustee), plus any amount that may be due on this sum as tax, for non-pecuniary damage;
50 EUR (fifty euros) to the first applicant, plus any amount that may be due on this sum as tax, for costs and expenses;
5,000 EUR (five thousand euros) to the curator, plus any amount that may be due on this sum as tax, for costs and expenses;
Documents Judgment