Judgment 55351/17

Applicant name Luca
Applicant type Natural person
Number of applicants 1
Application no. 55351/17
Date 17/10/2023
Judges Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Egidijus Kūris,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Diana Sârcu,
 Davor Derenčinović
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Positive obligation
Type of privacy Relational privacy
Keywords Procedural privacy; relational privacy
Facts of the case The present case concerns the alleged failure of the Moldovan authorities to protect the applicant from domestic violence and to support her in maintaining contact with her children. The applicant relied on Articles 3, 8 and 14 of the Convention.
AnalysisThe Court underlines that the authorities enjoy a wide margin of appreciation when deciding on custody. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of contact, and of any legal safeguards designed to secure effective protection of the rights of parents and children to respect for their family life.

The Court’s stresses that the children explained their negative views by the applicant’s alleged abandonment and lack of interest in them, in contrast to the father’s caring and involved stance, and the Court admits that its own case-law requires children’s views to be taken into account. It adds, however, that those views are not necessarily immutable and any objections expressed by children, while they must be given due weight, are not necessarily sufficient to override the parents’ interests, especially in having regular contact with their child.  The Court accepts that on a practical basis, there may indeed come a stage where it becomes futile, if not counterproductive and harmful, to attempt to force a child to conform to a situation which, for whatever reasons, he or she resists.

However, as the positive obligation of the State to restore and facilitate contact between the applicant and her children was not one as to results to be achieved, but one as to means to be employed, the Court observes that there was no attempt by the authorities to support the applicant of their own motion. The applicant was left to defend her right to maintain contact with her children by her own efforts, including by initiating court proceedings against the authorities that were meant to provide her with support. There is nothing in the case file to indicate that the authorities had any awareness of or sensitivity to the applicant’s vulnerability as a victim of domestic violence Taking into account the conduct of the domestic decision-making process as a whole, and in particular the failure of the domestic authorities to take into account the incidents of domestic violence in the determination of child contact rights and, consequently, their failure to take prompt measures to support the applicant in maintaining contact with her children, the Court finds that there has been a violation of Article 8 of the Convention.
Other Article violation? Yes, 3 and 3+14 ECHR
Damage awarded  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 14,250 (fourteen thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,840 (three thousand eight hundred and forty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
Documents Judgment