| Applicant name | VIOTTO |
| Applicant type | Natural Person |
| Number of applicants | 1 |
| Country | Moldova |
| Application no. | 12083/20 |
| Date | 13/06/2023 |
| Judges | Jovan Ilievski, President, Lorraine Schembri Orland, Diana Sârcu, judges |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Not necessary in a democratic society (?health and morals?; rights and freedoms of others?) |
| Type of privacy | Relational privacy; procedural privacy |
| Keywords | Custody; abduction; uncarefull decisional proces; even if; |
| Facts of the case | The present case concerns the alleged failure of the Moldovan authorities to assist the applicant in being reunited with his child after the latter had been taken from Italy to the Republic of Moldova by the mother and retained there. The Moldovan courts rejected his claims, inter alia finding that the The Hauge Convention was not applicable. |
| Analysis | The case is relatively short and standard, but still there are a number of things that stand out. 1. The Court uses an even if reasoning, when finding that clearly the case affected the father’s rights and that it would assume the ‘interference was “in accordance with the law” and pursued one or more legitimate aims (§17)’. It consequently does not discuss whether these requirements are actually met and leaves, for example, in the middle which, if any, legitimate interest was served by the Moldovan authorities. Although understanding from a efficiency perspective, this approach is not preferable from the 2. The Court is unusually sharp and critical and is clearly displeased with the lack of effort by the Moldovan authorities to return the child to the father. Inter alia, it points out: – the lack of coordination between the authorities in establishing the child’s whereabouts; – the lack of effective action to track the mother at an address which she herself had indicated as hers in parallel court proceedings; – the Government did not provide any evidence that the authorities had made any genuine attempt to find the child after having received the request from their Italian counterpart; – the reasons for the domestic courts to consider the Hague Convention not to be applicable for lack of a wrongful child abduction, while the Court finds that such was must likely the case; – the domestic courts failed to look at the interests of the father and his rights as established by Italian courts; – more importantly, they failed to take into account the interests of the child, to be raised in a stable situation. ‘On the contrary, the correspondence of the child protection authority indicates that the authorities had not had the chance to make any assessment because the mother had prevented their contact with the child. Contrary to the Italian courts, which had relied on specialist reports, the Moldovan courts’ assessment that the child’s separation from the mother outweighed the negative impact of the child’s separation from his father does not appear to rely on any specialist evaluation (§22)’; – the court proceedings seeking the child’s return were initiated by the applicant after no action had been taken by the Moldovan authorities for over five months since the request for return had been issued by the Italian authorities; – the domestic courts rendered the final decision after a year and a half, even though a six-week time limit is the standard. 3. The rather strong findings, however, seems all the Court can offer in these types of cases. The applicant asks for a substantial amount of non-pecuniary money, namely €50.000,-, but is only offered €4.500,-. As always, the ECtHR does not give a reason for its decision on the amount of damages that it awards. In addition, in this case, it makes clear that its judgment should not be interpreted as requiring the respondent State to return the child to Italy.’ After a five‑year separation, the child and the applicant would need assistance in rebuilding their relationship and it would be in the child’s best interest for the authorities to consider transitional and preparatory measures before making any change in the child’s situation (§25)’. |
| Other Article violation? | – |
| Damage awarded | 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 at the date of settlement: (i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 4,000 (four thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; |
| Documents | Judgment |