| Applicant name | r.g. |
| Applicant type | natural person |
| Number of applicants | 1 |
| Country | Switzerland |
| Application no. | 37870/21 |
| Date | 23/01/2025 |
| Judges | Armen Harutyunyan, président, Andreas Zünd, Mykola Gnatovskyy |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | violation |
| Reason | Positive obligation |
| Type of privacy | Procedrual privacy |
| Keywords | Custody; interests child |
| Facts of the case | The application concerns the alleged failure by the domestic authorities to take into account the child’s wish to live with his mother (the applicant) in the proceedings which granted custody to the father and to conduct a thorough examination of the circumstances of the case. |
| Analysis | The Court notes that at the time the Ticino Court of Appeal delivered its decision, the child was 11 years and 8 months old. He had therefore passed the age at which the Federal Court considers that maturity develops for boys (see paragraph 3 above). Thus, had he been heard, the child would have been able to provide more details about his reasons for wishing to continue living with his mother, which would have enabled the Ticino Court of Appeal to take its decision taking into account relevant arguments concerning the various aspects of this case. The Court therefore concludes that the domestic courts did not strike a fair balance between the respective interests. Furthermore, the Court reiterates that a decision or measure favourable to the applicant is not sufficient in principle to deprive him of the status of “ victim ” for the purposes of Article 34 of the Convention, unless the national authorities acknowledge, explicitly or in substance, and then provide redress for the violation of the Convention. In the present case, the Court notes that the award of custody of the child to the father decided by the Ticino Court of Appeal and confirmed by the Federal Court was not enforced . The Lugano Court subsequently awarded custody of the child to the applicant and the Ticino Court of Appeal declared the appeal of the child’s father inadmissible . However, the Court cannot ignore the fact that the situation at issue at the origin of the present application, namely the failure of the domestic authorities to take into account the child’s wish to live with his mother, lasted for eighteen months, from 11 August 2020 to 9 February 2022. The Court considers that the applicant directly suffered the effects of this situation in her private life during this period. Furthermore, the failure to enforce the award of custody of the child to the father and the judgments of the Lugano Court and the Ticino Court of Appeal cannot be interpreted as a recognition, in substance, of a violation of her right to respect for her private life. It must therefore be concluded that the applicant can claim to be a “ victim ” within the meaning of Article 34 of the Convention. Consequently, the Court rejects the Government’s preliminary objection relating to the applicant’s victim status. |
| Other Article violation? | – |
| Damage awarded | a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable on the date of settlement: EUR 3,720 (three thousand seven hundred and twenty euros), plus any tax that may be chargeable to the applicant on that amount, in respect of costs and expenses ; b) that from the expiry of the said period and until payment, this amount will be increased by simple interest at a rate equal to that of the marginal lending facility of the European Central Bank applicable during this period, increased by three percentage points ; |
| Documents | Judgment |