Compiled below are the Child Law decisions of the ECtHR delivered in 2014.
These reports are made available in the context of piloting a project that aims at the wider dissemination and increased accessibility of ECtHR Child Law jurisprudence. It is hoped that the reporting project will in time develop to become a valuable resource for those working in the area of child law.
The project has been initiated by PhD researcher and Child Law Clinic member Louise Forde with the support of the Clinic and will be launched on a dedicated platform later this year.
If you would like to give any feedback on the project, we would be delighted to hear from you via email at firstname.lastname@example.org.
ECLRP (2014) 1-1
Cusan and Fazzo v. Italy, nº/no. 77/07 – 07.01.2014
Article 8, Article 14, Article 5 of Protocol 7, right to a name
The applicants here, Alexandra Cusan and Luigi Fazzo, are a married couple, and complained of the automatic transmission of the father’s surname to his children. Mr Fazzo had requested that his daughter be entered on the civil register under her mother’s surname; this request was refused and the applicants’ appeals in the Italian courts were unsuccessful.
The applicants complained to the ECtHR that the Italian authorities’ refusal to grant their request to allow their daughter to take her mother’s surname, and the rule which made it mandatory for children born within marriage to take their father’s surname had breached their rights under Article 8 (right to respect for private and family life) and under Article 14 (prohibition of discrimination). The applicants also complained under Article 5 of Protocol No. 7 (equality between spouses), taken alone or read in conjunction with Article 14, that the rules governing transmission of surnames in Italy did not guarantee equality between spouses.
The Court found that as the choice of the child’s surname was determined solely on the basis of the parents’ sex there had been a violation of Article 14, taken together with Article 8. In light of this, the Court considered it unnecessary to determine whether there had been a breach of Article 8 taken alone, or of Article 5 of Protocol No. 7, taken alone or in conjunction with Article 14.
ECLRP (2014) 1-2
Zhou v. Italy, nº/no. 33773/11 – 21.01.2014
Article 8, foster care, contact with children in care
The applicant, a Chinese national resident in Italy, complained about the placement of her third child with a foster family by the Italian authorities. Ms Zhou’s two elder children had been sent to live with their grandparents in China previously. Her third child was born in 2004, and was housed with Ms Zhou in a mother-and-child centre, and subsequently in a State accommodation facility. Ms Zhou then found employment, and in March 2007, entrusted the care of the child to her elderly neighbours during her working hours without informing social services. The State Prosecutor at the Youth Court was informed of the situation by social services, and in December initiated adoption proceedings in respect of the child on the grounds that Ms Zhou was unable to take care of him.
Ms Zhou complained to the ECtHR under Article 8 (right to respect for private and family life) that her child had been placed with a foster family with a view to adoption, and further complained that she had had no contact with her child for ten months.
The Court found that there had been a violation under Article 8, and awarded €40,000 in non-pecuniary damages and €5,655.83 in costs and expenses.
ECLRP (2014) 1-3
O’Keeffe v. Ireland, nº/no. 35810/09 – 28.01.2014
Article 3, Article 13, Article 8, Article 2 of Protocol No. 1, Article 14, Article 6, sexual abuse of children, state responsibility
The applicant’s complaint related to the responsibility of the State for her sexual abuse by a teacher, LH, in an Irish National School in 1973. Complaints of sexual abuse were formally made against LH in the 1990s, and he was charged with 386 criminal offences against 21 former pupils. In1998, he pleaded guilty to 21 sample charges and was imprisoned. Ms O’Keeffe was subsequently awarded compensation by the Criminal Injuries Compensation Tribunal. Ms O’Keeffe went on to take a civil action against LH, the Minister for Education and Science, Ireland and the Attorney General. The High Court gave judgment against LH, but dismissed Ms O’Keeffe’s direct negligence claim against the state, and held that the State was not vicariously liable as LH’s employer. On appeal, the Supreme Court dismissed the vicarious liability point, and held that although the State had funded the primary school system, the role of the church in the management of the schools was such that the State could not be held vicariously liable for the acts of the teacher.
Ms. O’Keeffe complained to the ECtHR that the Irish primary school system was not structured in a way which effectively protected her from abuse, and that the Irish State had failed to investigate her complaints adequately or provide an appropriate judicial response. She also complained that she had not been able to gain recognition of or compensation for the State’s failure to protect her, relying on Article 3 (prohibition of inhuman and degrading treatment) and Article 13 (right to an effective remedy). She complained further of violations of Article 8 (right to respect for private life) and Article 2 of Protocol No. 1 (right to education), alone and in conjunction with Article 14 (prohibition of discrimination), and of Article 6.
Finding that the State had failed in its obligation to protect Ms O’Keeffe from sexual abuse while she had been a primary school student and that there had been a lack of effective remedies available to her as regards Ms O’Keeffe’s complaint about the failure to protect her from abuse, the Court held that there had been violations of Ms O’Keeffe’s rights under Articles 3 and 13. The Court ordered the State to pay Ms O’Keeffe €30,000 in pecuniary and non-pecuniary damages, and €85,000 in costs and expenses.
ECLRP (2014) 1-4
Veiss v. Latvia, nº/no. 15152/12 – 28.01.2014
Article 6, recognition of family ties, delay
The applicant, a Latvian national, complained to the ECtHR that the length of civil proceedings to record himself as the father of a child had been excessively lengthy.
Mr Veiss’ complaint related to a child of whom he was the biological father, born in 2006. The child’s mother, to whom he was not married, refused to record Mr Veiss’ paternity, and did not allow him to see the child from January 2007. An action was initiated by Mr Veiss at first instance in 2007 to establish his paternity after he received information that another man had registered himself as the father of the child; a successful appeal to the Senate of the Supreme Court resulted in a testing laboratory issued results indicating that he was the biological father of the child in October 2010. A subsequent action in which Mr Veiss tried to contest the other man’s registration as the father of the child ultimately led to a decision in May 2012 by the Senate of the Supreme Court that his claim should not be granted as it would be contrary to the child’s interests. Mr Veiss subsequently obtained a re-opening of these proceedings, based on further information which had come to light, and these proceedings are currently pending before the district court.
Mr Veiss complained of a breach of his rights under Article 6 § 1 (right to a fair trial within a reasonable time) of the European Convention on Human Rights, as a result of excessively lengthy civil proceedings. The Court found that there had been a violation of Mr Veiss’ rights under Article 6 § 1, and awarded him €1,000 in pecuniary damages and €2,000 in costs and expenses.
ECLRP (2014) 1-5
T.M. & C.M. v. the Republic of Moldova, nº/no. 26608/11 – 28.01.2014
Article 3, Article 14, protection from abuse, state responsibility
The applicants, a mother and daughter, born in 1982 and 2002 respectively, complained that the Moldovan authorities had failed to adequately protect them from acts of domestic violence by Mr M.M., Ms T.M.’s husband and Ms C.M.’s father. Ms T.M. had made numerous domestic violence complaints against Mr M.M. from June 2010, and applied for a protection order in April 2011, but an effective order was only granted in September 2011.
The applicants complained that the Moldovan authorities had ignored the domestic violence against them, and had failed to speedily enforce a court order designed to offer them protection. They complained that this had violated their rights under Article 3 (prohibition of inhuman or degrading treatment) of the Convention. Ms T.M. further complained under Article 14 (prohibition of discrimination) taken in conjunction with Article 3 that the authorities’ failure to adequately protect them amounted to gender discrimination.
The Court found that there had been violations of Article 3 in respect of both applicants, and a violation of Article 14 in respect of Ms T.M, and awarded €15,000 in pecuniary damages to the applicants jointly, and €2,150 in costs and expenses.
ECLRP (2014) 2-1
Oruk v. Turkey, nº/no. 3367/04 – 04.02.2014
Article 2, right to life
The applicant’s complaint related to a mortar rocket which exploded near an army firing range in 1993, killing six children, including Ms. Oruk’s son. Following this incident, the public prosecutor declined jurisdiction, considering the accident had been caused by military negligence on the part of the army, and the case was forwarded to the military prosecutor’s office in December 1993. In December 1995, the military prosecutor discontinued the proceedings. Ms Oruk’s appeal against this decision was dismissed by the military tribunal.
Ms. Oruk complained under Article 2 (right to life) of the Convention that the death of her son and of five other children had been caused by the conduct of the armed forces. Finding a violation of Article 2, the Court awarded Ms. Oruk €50,000 in non-pecuniary damage and €5,000 in costs and damages.
ECLRP (2014) 2-2
Vasilca v. the Republic of Moldova, nº/no. 69527/10 – 11.02.2014
Article 2, right to life, state responsibility to investigate
The applicant complained under Article 2 of the Convention that the Moldovan authorities had failed to carry out an effective investigation into her seventeen-year-old son’s death. He had died in 2008 after falling from the balcony of an apartment block. The Moldovan authorities concluded in 2010 that his death had been as a result of suicide. She complained that the authorities had failed to effectively examine evidence or question witnesses which would have led them to investigate the possibility that her son had either been pushed or forced to jump from the balcony.
The Court found that, given the manner in which the death was investigated, the time the investigation took, the failure to examine some evidence referred by the Ms. Vasilca and Ms. Vasilca’s limited involvement in the investigation, the investigation by the Moldovan authorities had not been effective, and thus there had been a violation of Article 2 of the Convention. It awarded Ms Vasilca €12,000 in non-pecuniary damages and €422 in costs and expenses.
ECLRP (2014) 2-3
A.L. v. Poland, nº/no. 28609/08 – 18.02.2014
Article 8, recognition of paternity
The applicant’s complaint in this case concerned the outcome of denial of paternity proceedings in the Polish courts. In 1995, A.L. acknowledged paternity of D. and subsequently married the mother. In 2000, they divorced, and custody of D. was awarded to the mother. A.L. began having doubts about his paternity of D., and in January 2007 received the results of a DNA tests which confirmed that he was not the father. In subsequent proceedings before the domestic courts, the courts dismissed the claim to contest paternity, finding that it was not in D.’s best interests. They particularly noted that A.L. had acknowledged paternity of D. despite being aware that D.’s mother had had sexual relationships with other men, and therefore was aware that he may not have been D.’s father.
A.L. complained under Article 8 of the Convention about outcome of these proceedings to annul his declaration of paternity, despite DNA evidence to show that he is not D.’s father. Concluding that the domestic courts had properly identified and given consideration to the competing interests at stake, particularly the best interests, of the child, the Court found that a fair balance was struck between the interests of the applicant and the general interest in ensuring legal certainty and security of family relationships as well as the need to protect the interests of the child. Therefore, they found that there had been no violation of Article 8 of the Convention.
ECLRP (2014) 2-4
Ostace v. Romania, nº/no. 12547/06 – 25.02.2014
Article 8, recognition of paternity
This case concerned a complaint by the applicant that he had not been able to get a judgment in his domestic courts reversed which declared him to be the father of a child, H.A, born in 1980. In 2003, H.A. and the applicant had undergone tests to establish paternity, which gave results indicating that Mr. Ostace was not H.A.’s father. Mr. Ostace sought to revise a 1981 paternity decision which had declared him H.A.’s father. The domestic courts declared his application inadmissible because the documentation establishing he was not H.A.’s father did not exist in 1981. Mr. Ostace complained that this violated his rights under Article 8 of the Convention.
In a unanimous decision, which is not yet final, the Court held that there was a violation of Mr. Ostace’s rights under Article 8, as he had not had the opportunity to challenge the judgment declaring his paternity under national law. While this might be explained by a legitimate interested in ensuring public safety, the stability of family relations and the need to protect the interests of the child, the Court found that the domestic authorities had failed to strike a fair balance between the competing interests in this case.
ECLRP (2014) 2-5
Josef v. Belgium, nº/no. 70055/10 – 27.02.2014
Article 3, Article 8, Article 13, immigration, deportation, family life in immigration, access to an effective remedy
This case concerned the return of the applicant, who was HIV positive, and her three children to Nigeria, where she claimed she would be at risk of inhuman and degrading treatment. Ms Josef had arrived in Belgium in 2007, and shortly thereafter arrived at an asylum, at which time she was eight months pregnant. She had fled from Nigeria after becoming pregnant by a man whose family would have pressured her to have an abortion. Ms Josef filed a request to remain in Belgium on medical grounds, as she was HIV positive. Her request was ultimately rejected by the Belgian authorities on the grounds that the necessary medication was available in Nigeria. She then made a request for suspension, as a matter of extreme urgency, of the authorities’ refusal to grant her leave to stay and the order to leave Belgium, and sought annulment of these decisions. This request was rejected by the Aliens Appeals Board, and an appeal on points of law arising from this was deemed inadmissible by the Conseil d’État. Ms Joseph had given birth to three children between her arrival in Belgium in 2007 and November 2012. Ms Joseph complains that her return to Nigeria would violate her rights under Article 3. She also complained that the refusal of the Belgian authorities to grant her leave to stay would violate her Article 8 rights, and further that she had not had access to an effective remedy as required under Article 13.
The Court found that there had been a violation of Article 13, stating that the Belgian appeal process in deportation cases was too complex and difficult to understand, even with the help of specialist legal assistance, and this, combined with the limited application of an “extreme urgency procedure” meant that there not an available and accessible remedy for the applicant in practice. The Court found that there would be no violation of her rights under Article 3 occasioned by her removal to Nigeria. The Court also found no violation of her rights under Article 8, concluding that although it would not necessarily be in their favour to move, due to their young age they would have the opportunity to effectively re-settle in Nigeria, and emphasising that the family unit would not be broken up.
ECLRP (2014) 3-1
Filiz v. Turkey, nº/no. 28074/08 – 04.03.2014
Article 3, Article 5§3, Article 13, ill-treatment in detention, length of detention, lack of effective remedies
The applicant in this case was arrested by the Turkish authorities after a group of demonstrators who were members of the PKK had attacked security forces at festivities organised by a pro-Kurdish party in March 2007. Mr Filiz was charged, and his detention was upheld and continued by the assize court. Mr Filiz was sixteen at the time of his arrest, and was aged seventeen at the end of his detention. His detention lasted a total of eleven months and six days.
Mr Filiz complained under Article 3 that he had been ill-treated during his arrest and detention. He further complained about the excessive length of his pre-trial detention, the extension of this detention and his lack of effective remedies against the decisions to extend his detention, which he alleged violated his rights under Article 5§3 and Article 13.
The Court found that there had been a violation of the applicant’s rights under Article 5§3, however, found that there had been no violation of his rights under Article 3 or under Article 13.
ECLRP (2014) 2-2
Palanci v. Switzerland, nº/no. 2608/08 – 25.03.2014
Article 8, immigration, deportation, family life in immigration
The applicant in this case is a Turkish national; his complaint relates to the decision of the Swiss authorities to expel him to Turkey. Mr Palanci had been living in Switzerland for a number of years with his wife – a Turkish national who had a residence permit in Switzerland – and three daughters were born to the couple in Switzerland. The applicant had accumulated a number of criminal convictions while living in Switzerland, and had continuously accumulating debts and had failed to pay maintenance during a period when he and his wife had temporarily separated. The Swiss authorities concluded, after weighing up the issues with the applicant’s right to a family life under Article 8, that the public interest in expelling the applicant to Turkey outweighed his personal interest in remaining in Switzerland.
The applicant complained that the decision of the Swiss authorities to expel him to Turkey breached his right to respect for family life under Article 8 of the Convention. In considering whether the Swiss authorities’ interference was justified, the Court noted that the children were young enough to be able to adapt to a new environment without serious difficulties, as Turkish was their mother tongue, they had visited relatives in Turkey and spent holidays there, and Ankara had a well-established school system. The Court concluded that even if the children’s relocation to accompany the applicant would involve uprooting them, it couldn’t be said that the Swiss authorities had not duly taken their interests into account. They concluded that their assessment of the weight to be given to the various factors were within their margin of appreciation, and a fair balance had been struck. Therefore there had been no violation of Article 8 of the Convention.
ECLRP (2014) 4-1
Konstantinidis v. Greece, nº/no. 58809/09 – 03.04.2014
Article 8, Article 14, recognition of paternity
The applicant is a Greek national who was born in 1981. This case concerns an action taken in Greece for a declaration of paternity. Mr Konstantinidis brought his action for a declaration of paternity before the domestic courts in 2003, claiming that Y.M., a well-known composer in Greece, was his father. The court at first instance dismissed the action, as under domestic law, the child’s entitlement to bring an action for recognition of paternity expired one year after he reached the age of majority. Mr Konstantinidis had reached the relevant age of majority in 1999, but brought no action until 2003. He subsequently brought an appeal on points of law in the domestic courts, which was also dismissed.
Mr Konstantinidis complained that the application of the time limit in his case had infringed his rights under Article 8, taken alone and in conjunction with Article 14. The Court, noting that although the applicant was informed of the identity of his father in August 2001 he did not initiate any action until December 2003, considered that the applicant had displayed a lack of diligence not justified by the belated disclosure of the identity of his father. The Court found that the application of the time limit by the Greek courts in this case did not violate the applicant’s right to respect for his private life, and therefore there had been no violation of Article 8 taken alone. The Court also held that there had been no violation of Article 8 in conjunction with Article 14.
ECLRP (2014) 4-2
Krasicki v. Poland, nº/no. 17254/11 – 15.04.2014
Article 8, contact with children
Mr Krasicki complained that the Polish authorities had failed to take effective steps to enforce his right to contact with his sons, A. and J., born in 1999 and 2000. The applicant in this case had not co-habited with the mother or his sons. In May 2005 he requested a contact order to arrange for contact with his sons away from the mother’s home. In 2006, the domestic court specified arrangements for contact with the children, and the mother was obliged to comply with this order. However, she failed to comply with the contact order. Various measures were taken by the authorities, and a number of fines were imposed on the mother by the domestic courts. The measures taken, however, were ineffective, and the mother was never detained for her failure to pay fines imposed or for refusing to comply with the contact order.
The applicant complained that there had been a violation of his rights under Article 8 of the Convention as the domestic authorities had failed to take effective steps to ensure his right of contact with his sons. In considering the case, while the Court acknowledged that the domestic authorities could have taken more stringent measures, this could not be attributed to a lack of diligence on the part of the competent authorities, and they had taken all steps necessary as could be reasonably required of them in order to enforce the applicant’s right of contact with his sons. Therefore, they concluded that there had been no violation of the applicant’s rights under Article 8.
ECLRP (2014) 4-3
Tomaszewscy v. Poland, nº/no. 8933/05 – 15.04.2014
Article 5§1, Article 5§3, Article 3, Article 8, Article 13, detention, ill-treatment in detention, right to complain to the ECtHR
The applicants in this case were Sebastian Tomaszewski (born in 1981), Artur Tomaszewski (born in 1983), Zbigniew Tomaszewski (who was born in 1989 and died in a road accident in 2004) and Bożena Tomaszewska, their mother. They complained in relation to the three brothers’ deprivation of liberty and detention for a subsequent by the police in August 2003. They had been arrested after leaving a discotheque and brought to the police station, where they were made to undress and undergo a body search. They were beaten, and the youngest brother was hit in the face and fell unconscious. The applicant subsequently complained to the district prosecutor, who decided not to prosecute on the grounds that no offence attributable to the police officers could be made out on the evidence available. The applicants appealed this decision but it was upheld.
They complained that their rights under Article 5§1 and Article 5§5 that their arrest and detention had been arbitrary, and that they had been unable to obtain compensation. They also complained that their rights under Articles 3, 8 and 13 had been violated because of their mistreatment by the police and the lack of an effective investigation subsequently.
As the youngest brother, a minor, died in 2004 in a road accident at the age of 15, the Court first considered whether his mother, Bożena Tomaszewska could be granted standing in place of the deceased. Considering that the claims made under Articles 3, 5 and 6 were highly personal and non-transferable, the Court held that Mrs Tomaszewska could claim victim status required by Article 34 of the Convention and the application in so far as it concerns the applicant, must be rejected as incompatible ratione personae with the Convention pursuant to Article 35 § § 3 and 4 of the Convention
The Court rejected the applicants’ complaints under Article 3 as manifestly ill-founded. It further held that the complaints under Article 5§1 and 5§3 were admissible only in relation to Sebastian and Artur Tomaszewski, and found that there had been a violation of both Article 5§1 and Article 5§3 in respect of Sebastian and Artur Tomaszewski.
ECLRP (2014) 4-4
Paposhvili v. Belgium, nº/no. 41738/10 – 17.04.2014
Article 2, Article 3, Article 8, immigration, deportation, family life in immigration
The applicant is a Georgian national living in Brussels. Mr Paposhvili complains that the decision to return him to Georgia and ban him from returning to Belgium would violate his rights under Articles 2, 3 and 8. The applicant had entered Belgium in 1998 with his wife and her son. They subsequently had two children in 1999 and 2006. Mr Paposhivili was convicted of a number of offences between 1998 and 2007, during which time he was also treated for a number of serious medical treatments. In August 2007, an order for the applicant’s expulsion was issued, and he was banned from re-entering Belgian territory for ten years on the grounds that he posed a danger to public order. The order became enforceable once Mr Paposhvili completed his sentence but was not in fact enforced, as he was still undergoing medical treatment. The order was postponed several times, and in November 2009 his wife and children were granted indefinite leave to remain.
The applicant complains that his expulsion to Georgia would violate his rights under Articles 2 and 3 of the Convention, as he would face a risk of premature death there as well as a risk of being subjected to inhuman or degrading treatment because he would not have access to necessary medical treatment there. He also complained under Article 8 that his expulsion and exclusion from Belgium for 10 years would result in separation from the rest of his family. The Court held that there had been no violation of the applicant’s rights under Article 2, Article 3 or under Article 8.