| Applicant name | A.S. and M.S. |
| Applicant type | |
| Number of applicants | 2 |
| Country | Italy |
| Application no. | 48618/22 |
| Date | 19/10/2023 |
| Judges | Marko Bošnjak, président, Alena Poláčková, Krzysztof Wojtyczek, Lətif Hüseynov, Ivana Jelić, Gilberto Felici, Raffaele Sabato |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Positive obligation |
| Type of privacy | Procedural privacy; relational privacy |
| Keywords | Contact rights; |
| Facts of the case | Father alleges violation of his and his child’s family life and also invokes the child’s private life. They criticize the national authorities for not having taken with due diligence all the measures that could reasonably be required of them to enable the link uniting the interested parties to be maintained and to facilitate the exercise by the first applicant of the right of visitation as he had been granted by the decisions of the domestic courts. As regards the second applicant, the application also raises the question of whether the national authorities satisfied their positive obligations to protect his psychological integrity, which was allegedly threatened both by the extremely conflictual relationship between his parents, by the fact that the relationship between the child and his mother would have been stifling, and by the psychological manipulation that the latter would have exercised on him. |
| Analysis | As to the applicability, the ECtHR quickly establishes that the right to family life was in play, With respect to the child, however, the Court notes two addtional points, because the applicants had also relied on the protection of ‘private life’. First, it affirms that in theory, tthe abusive exercise of parental authority consisting in a person who subjects their child to mental manipulation and distances the child from the other parent with whom they have an extremely conflictual relationship can be consiered as psychological violence against the child and consequently as an interference with the right to “private life”. However, it explicitly stresses that not any interference is sufficient enough to meet the de minimis standard, only to conclud that in this case, the interference was so serious that it did meet the threshold. The Court finds that during every stage, a country must show that it has struck a fair balance between the various interest at stake. This includes four fases: (i) the decision to place a child in an institution; (ii) the execution of the decision; (iii) the decision ordering a psychological expert report and the measures taken thereupon, and finally (iv) the adoption of the decision on the request for suspension filed by the first applicant. (i) With regard to the first point, the Court finds that the domestic authorities took the best decision in the interest of the child, namely to place it in an institution, but that it was not taken swiftly. (ii) The execution of the judgement was not implemented swiftly as well. (iii) The Court emphasises that in sensitive cases like this one, an expert report is of the utmost importance. Although it was eventually requested, this took the authorities several years. (iv) Again, the Court finds unnecessary delay. Interestingly, in a concurring opinion, judges Wojtyczek and Huseynov argue that the ECtHR should have heard the mother as well and by not doing so, itself violation principles of procedural justice. |
| Other Article violation? | – |
| Damage awarded | that the respondent State must pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums: 5,000 EUR (five thousand euros) to the first applicant, plus any amount that may be due on this sum as tax, for non-pecuniary damage; 12,000 EUR (twelve thousand euros) to the second applicant, plus any amount that may be due on this sum as tax, for non-pecuniary damage, which amount will be kept in trust by the first applicant; EUR 9,000 (nine thousand euros), plus any amount that may be owed on this sum by the first applicant as tax, for costs and expenses; |
| Documents | Judgment |