SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43572/98 by Enzo Fortunato CANEPA against Italy

The European Court of Human Rights ( Second Section ) sitting on 25 November 1999 as a Chamber composed of

Mr C. Rozakis, President , Mr M. Fischbach, Mr B. Conforti, Mr G. Bonello, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, Mr A.B. Baka, judges ,

and Mr E. Fribergh , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 August 1998 by Enzo Fortunato Canepa against Italy and registered on 24 September 1998 under file no. 43572/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1951 and currently residing in Chiavari ( Genoa ).

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1978 the applicant married Mrs G. Two children, X and Y, were born in wedlock in 1983 and 1988.

In December 1993 the applicant left the marital house and started living with a certain Mrs M. The applicant alleges that, since then, he made substantial efforts to maintain regular contacts with X and Y. However, he had to face “the aggressive behaviour of his wife”, who allegedly tried to “destroy [his] reputation and his relationship with his own children.”

The first claim before the Genoa Youth Court

On 18 March 1994 the applicant requested the Genoa Youth Court (“ tribunale dei minorenni ”) to grant him the care and custody over his children. He observed that from 31 December 1993 he was de facto separated from his wife and that the latter had a negative influence on X and Y.

In an order of 19 April 1994, the Genoa Youth Court provisionally granted Mrs G. the custody of the children. The court also decided that the applicant should have access to X and Y one day per week and one week-end every fortnight.

The judicial separation proceedings and the proceedings before the Genoa Youth Court

On 30 May 1994 Mrs G. filed a claim for judicial separation with the Genoa District Court.

In an order of 3 February 1995, the President of the District Court confirmed the committal to Mrs G. of the children's care and custody and the applicant's right of access. He ordered, however, that X and Y should not stay overnight at the applicant's place when Mrs M. was present.

On 26 May 1995 the applicant and Mrs M. had a daughter, Z.

On 13 June 1995 the Genoa investigating judge appointed an expert, the psychologist and psychotherapist L., and charged him to analyse the relationship between X, Y and their parents and the behaviour of the applicant and Mrs G. with regard to their children.

On 14 September 1995 L. informed the investigating judge that the applicant had refused to consign Y to his mother's care. In an order of 19 September 1995, the investigating judge decided to suspend the applicant's access to X and Y. This decision was adopted pursuant Article 333 of the Civil Code, according to which where the conduct of the parents is detrimental to the child, the judicial authorities may take any decision that is appropriate. Such decisions may be revoked at any stage of the proceedings.

On 30 September 1995 a bailiff tried to apprehend Y at the applicant's place. However, notwithstanding the assistance of two carabinieri , this attempt failed since the child refused to join his mother.

On 2 October 1995 the applicant presented to the investigating judge a report prepared by an expert of his own choosing. The report indicated that Y had shown a spontaneous desire to live with his father and that frustrating his will would have been detrimental for the child's psychological stability.

On 3 October 1995 L. filed his final report with the District Court's registry. On the basis of the interviews he had had with the applicant, X, Y, Mrs G. and Mrs M., L. concluded that the applicant and Mrs M. were trying to use Y in order to sustain their animosity against Mrs G., who, on the other hand, had shown greater maturity and educational capacity.

In an order issued on 6 October 1995, the Genoa investigating judge confirmed the suspension of the applicant's access to X and Y and ordered the case-file to be forwarded to the Genoa Youth Court.

On 13 October 1995 the investigating judge ordered that Y be consigned to his mother's care, if need be, with the police's assistance.

On 23 October 1995 the applicant appealed against this order. In a decision of 31 October 1995, filed with the registry on 2 November 1995, the Genoa District Court declared the applicant's claim inadmissible, no appeal being available against an execution order.

On 3 November 1995 Mrs G., assisted by a bailiff and by the carabinieri , tried to apprehend Y at his primary school. This attempt failed as a consequence of the child's refusal to join his mother and of the intervention of the applicant and Mrs M. With regard to this episode, the applicant alleged that the carabinieri physically injured Y, who was moreover psychologically humiliated before his schoolmates. However, none of these circumstances is mentioned in the bailiff's written record.

In an order of 1 February 1996, the Genoa Youth Court declared that Mrs M. should abstain from bringing Z in the neighbourhood of Y's primary school. It observed that according to the information at its disposal, Z, who was at that time about eight months old, had been waiting for prolonged periods in a car parked outside the school. Such a situation, which had occurred even on cold winter days, could be regarded as being detrimental to the interests of the little girl. This order was eventually revoked on 9 June 1997. According to the applicant, the Youth Court moreover threatened him and Mrs M. of limiting their parental authority over Z.

In an order of 22 April 1996, filed with the registry on 29 April 1996, the Genoa Youth Court, acting in accordance with Article 333 of the Civil Code and observing that the applicant had refused to consign Y to his mother's care and to attend the meetings scheduled by the Genoa social services, ordered that the applicant's parental authority be suspended, that the care over Y be provisionally committed to the Genoa City Council and that the child be transferred to a public care institution. In execution of his order, on 29 April 1996 Y was apprehended by three policemen in front of his primary school and placed in the public care institution K., which was allegedly kept secret to the applicant. On 2 May 1996 the President of the Genoa Youth Court gave the applicant a letter from Y, which had been partly censored by the authorities in order to prevent the reader from finding out the place where it had been written.

On 9 May 1996 the applicant lodged an appeal against the order of 22 April 1996. In an order of 6 June 1996, filed with the registry on 19 July 1996, the Genoa Youth Appeal Court confirmed the suspension of the applicant's parental authority. It annulled the remainder of the impugned decision, observing that pending the separation proceedings the Youth Court was not competent to decide issues other than those related to the above mentioned suspension.

In the meanwhile, in a decision of 7 May 1996, the Genoa Youth Court had ordered that Y be committed to his mother, his continuos stay in a public care institution being detrimental for him. On 15 May 1996 Y started living with his mother's family.

In a judgment of 7 May 1996, filed with the registry on 20 June 1996, the Genoa District Court declared that the applicant was responsible for the spouses' separation and fixed at 3,000,000 lire the monthly sum that he should pay to Mrs G. The District Court also granted Mrs G. custody of the children, confirmed the suspension of the applicant's access and charged the Genoa Youth Court to supervise a gradual and possible renewal of the contacts between X, Y and their father.

On 31 July 1996 the applicant appealed against this judgment. On 10 October 1996 the President of the Genoa Court of Appeal fixed the date of the hearing at 6 December 1996. On that occasion the applicant declared that he did not intend to pursue his claim. In an order of the same day, filed with the registry on 9 January 1997, the Genoa Court of Appeal declared the applicant's appeal inadmissible. As a consequence, the judgment of 7 May 1996 became final. The applicant indicated that the decision to withdraw his appeal was due to the little confidence he had in the Genoa magistrates.

In the meanwhile, in an order of 7 October 1996, the Genoa Youth Court had granted the applicant access to Y once a week. All the meetings took place in a public care institute where an educator (“ educatore ”) was always present.

The applicant alleged that, notwithstanding the Youth Court's decision, on 16 July 1997 an educator named F. decided to suspend the meetings at issue. From that date, the applicant had no further contacts with Y. In a note of 22 October 1997, F. informed the Genoa Public Prosecutor's Office that the social services had tried on several occasions to get in touch with the applicant - who could not be found - and had eventually recorded a message on his answering machine, without any result.

On 4 June 1997 the applicant requested the Genoa District Court to reduce the amount of the monthly sum due to Mrs G. and to grant him custody over Y and access to his children. In an order of 16 July 1997, filed with the registry on 23 July 1997, the Genoa District Court, observing that the applicant was not represented by a lawyer as prescribed by Italian law, declared this claim inadmissible .

According to the applicant, the Genoa Youth Court and its attached Public Prosecutor's Office refused to take into consideration a number of claims he had personally introduced seeking the annulment of the suspension of his parental authority and the adoption of a number urgent measures in the interests of his children.

The divorce proceedings

On 30 April 1998 the applicant introduced a claim for divorce before the Genoa District Court. The date of the hearing was fixed at 13 November 1998. The proceedings were subsequently adjourned to 7 January 1999, on which date the President of the District Court placed himself at the disposal of the parties with a view of securing a friendly settlement of the matter. Considering that there was no basis for such a settlement, the President adjourned the case until 8 June 1999.

The other claims introduced by the applicant

In 1996 and 1997, the applicant had introduced a number of claims, requesting that criminal proceedings be instituted against L., the magistrates of the Genoa Youth Court, a lawyer of his own choosing, Mrs G's father and the educator F. None of these claims had any substantial result. In particular, on 3 June 1998 the Genoa investigating judge decided not to commence proceedings against F. on the basis of the applicant's allegations.

COMPLAINTS

1. The applicant alleges that the attempts made by the police and the carabinieri to apprehend Y and his subsequent placement in a public care institute amounted to an “inhuman or degrading treatment”. He invokes Articles 3 and 5 §§ 1 (b) and 5 of the Convention.

2. Invoking Article 8 of the Convention, the applicant complains about the censoring of Y's letter.

3. Invoking Articles 12 and 14 of the Convention, the applicant alleges that the Genoa Youth Court threatened to limit his parental authority over his daughter Z, thus trying to impair his right to found a new family with Mrs M.

4. Invoking Article 2 of Protocol n o 4, the applicant complains about the limitation of liberty of movement imposed on his daughter Z by the Genoa Youth Court in its order of 1 February 1996.

5. Invoking Articles 6 and 13 of the Convention and 5 of Protocol n o 7, the applicant complains about the unfairness of the proceedings before the Genoa Youth Court and the Genoa Youth Appeal Court.

THE LAW

1. The applicant alleges that the attempts made by the police and the carabinieri to apprehend Y and his subsequent placement in a public care institute amounted to an “inhuman or degrading treatment”. He invokes Articles 3 and 5 §§ 1 (b) and 5 of the Convention.

As far as relevant, these provisions read as follows.

Article 3

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 5

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ...

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation ."

The applicant affirms that Y was physically injured, psychologically humiliated before his schoolmates and eventually forced to stay in a “dirty institute” for about two weeks.

The Court considers that it is not necessary to answer the question whether the applicant has exhausted the remedies which were available to him under Italian law, since, even if he did, this complaint would in any case be inadmissible for the following reasons.

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see the Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162 et the Tyrer v. United Kingdom judgment of 25 April 1978, Series A no. 26, pp. 14-15, §§ 29-30). In this context, it is not sufficient that certain aspects of the situation complained of were unpleasant or even irksome (see the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 40, § 107).

In the present case, the applicant has not substantiated that his son was injured and humiliated in a way which attained the level of severity required to fall under Article 3.

As far as Article 5 of the Convention is concerned, the Court recalls that while the protection afforded by this provision also covers minors, the care and upbringing of children normally and necessarily require the imposition of various restrictions on the child's liberty. Thus the children in a school or another educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects without there being a deprivation of liberty on the sense of Article 5 (see Eur. Comm. HR, N o 14013/88, Dec. 14.12.89, D.R. 64, pp. 176, 180). In the present case, the Genoa City Council assumed the right of care and custody with regard to Y, and the Genoa Youth Court committed him to a public children's home. It has not been shown by the applicant that the conditions in this home deprived Y of his liberty.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected according to paragraph 4 of this same provision.

2. The applicant complains about the censoring of Y's letter. He invokes Article 8 of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."             

The applicant emphasises that he was unaware of the name of the institute in which Y had been brought and therefore unable to reply to his son's letter.             

The Court observes that the letter at issue was censored only to the extent necessary to prevent the applicant from discovering the place in which Y had been placed. The censoring complained of constituted a mere consequence of the suspension of the applicant's access and parental authority over his children. The Court recalls that it cannot confine itself to considering the relevant facts in isolation but must look at them in the light of the case as a whole. In particular, it should be determined whether the said suspensions were in conformity with the Convention.

In this context, it is to be noted that, after having appealed against the Genoa District Court's judgment of 7 May 1996, the applicant withdrew his claim and, as a result, his appeal was declared inadmissible. As to the claim introduced before the Genoa District Court on 4 June 1997, it was declared inadmissible because the applicant was not represented by a lawyer as prescribed by Italian law. These decisions were given respectively on 6 December 1996 and 16 July 1997, which is more than six months before the date on which the application was introduced. 

However, t he Court considers that, even assuming that the applicant has complied with the six months rule and has exhausted the remedies available to him under Italian law, this complaint is in any event inadmissible for the following reasons.

The Court recalls that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and that the family life of parents with their children does not cease to exist following the separation of the parents or the divorce of a married couple (the Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 14, § 21). Therefore, the suspension of the applicant's access and parental authority over his children amounted to an interference with the right protected by Article 8 of the Convention.

Such interference constitutes a violation of this Article unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society” (see, among other authorities, the Bronda v. Italy judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1489, § 52).             

The Court considers that the measures at issue were in accordance with the law within the meaning of paragraph 2 of Article 8 – that is, with Article 333 of the Civil Code (see the Bronda v. Italy judgment, quoted above, pp. 1489-1490, §§ 53-54) - and that those measures had pursued a legitimate aim within the meaning of the same provision in that they were intended to further the well-being of the applicant's children and thus “the protection of the rights and freedoms of others”.

It remains to be determined whether the interference with the applicant's right to respect for a family life was “necessary in a democratic society” within the meaning of paragraph 2 of Article 8.

The Court recalls that a fair balance must be struck between the interests of the child and those of the parent (see, for example, the Olsson v. Sweden judgment (no. 2) of 27 November 1992, Series A no. 250, pp. 35-36, § 90) and that in doing so particular importance must be attached “to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. In particular ... the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child's health and development” (see the Johansen v. Norway judgment of 7 August 1996, Reports 1996-III, p. 1008, § 78). Moreover, the State enjoys a certain margin of appreciation (see, for example, the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 20 § 55).

The Court observes at the outset that the decisions complained of were taken in the context of a controversy between the children's parents with a view to determining the best solution for the children pending the spouses' separation proceedings.

The Italian courts, taking the children's well-being as the guiding principle for their decisions, considered the children's personal situation, the spouses' conduct in the course of their separation and divorce proceedings. In their decisions, the courts relied on the statements of both parents as well as of the children, and also on psychological expertise. Moreover, the courts carefully balanced the conflicting interests involved.

Against this background, the Court finds that the reasons for the impugned decisions were both relevant and sufficient. Moreover, having regard to the children's situation, there is no indication of any disproportion between the decisions taken and the legitimate aim pursued. In particular, the Italian authorities took into account the applicant's refusal to comply with the District Court's orders and to consign Y to his mother's care. In this respect, it is to be recalled that the order pronouncing the suspension of the applicant's parental authority was not final and could be revoked at a later stage of the proceedings. As concerns the suspension of the applicant's access to his children, this measure was regarded by the domestic authorities as temporary. Indeed, on 7 May 1996 the Genoa District Court charged the Genoa Youth Court to supervise a gradual and possible renewal of the contacts between X, Y and their father, and on 7 October 1996 the Genoa Youth Court granted the applicant access to Y once a week.

The Court has not overlooked the applicant's situation. The absence of contacts with one's child may cause considerable suffering to the non-custodial parent. However, where, as in the present case, there is a conflict between the interests of a child and one of its parents which can only be resolved to the disadvantage of either the child or the parent concerned, the interests of the child must under Article 8 of the Convention prevail.

Finally, as to the procedural requirements implicit in Article 8 ( cf. the Olsson v. Sweden judgment of 24 March 1988, Series A no. 130, p. 33 § 71), the Court finds that the applicant, assisted by counsel, was involved in the decision-making process on his request for access to a degree sufficient to provide him with the requisite protection of his interests. In particular, the children were heard by L. and two expert reports, including one prepared by the applicant's own expert, were taken into account.

In these circumstances, the Court considers that the Italian authorities did not exceed their margin of appreciation and that the facts complained of do not disclose any appearance of a breach of Article 8.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected according to paragraph 4 of this same provision.

3. Invoking Articles 12 and 14 of the Convention, the applicant alleges that the Genoa Youth Court threatened to limit his parental authority over his daughter Z, thus trying to impair his right to found a new family with Mrs M. He moreover considers that Y was “punished” by the authorities only because he had expressed the will of staying with his father's new family.

The provisions invoked by the applicant read as follows:

Article 12

"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."

Article 14

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Court first observes that the facts alleged by the applicant do not amount to legal impediments to marriage and do not prevent him from founding a new family according to the relevant national laws. In so far as Article 14 is at issue, the applicant failed to show that he or his son have been treated differently from other persons in relevantly similar situations.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected according to paragraph 4 of this same provision.

4. The applicant considers that the Genoa Youth Court's order of 1 February 1996, prohibiting Mrs M. to bring Z in the neighbourhood of Y's primary school, imposed on his daughter an illegitimate limitation of liberty of movement. He invokes Article 2 of Protocol n o 4, which, in so far as relevant, reads as follows:

"1. Everyone lawfully within the territory of a State shall ... have the right to liberty of movement ...

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society ... for the protection of the rights and freedoms of others ."

However, the Court is not called upon to decide whether the facts alleged by the applicant disclose any appearance of a violation of this provision. It recalls that according to Article 35 § 1 of the Convention, it may only deal with the matter within a period of six months from the date on which the final decision was taken. When an applicant complains about a continuing situation, the six months period runs from the end of the situation (see Eur. Comm. HR, no. 14807/89, Dec. 12.2.92, D.R. 72, pp. 148, 167 and no. 11660/85, Dec. 19.1.89, D.R. 59, pp. 85, 90).

In the present case, the order of 1 February 1996 was eventually revoked on 9 June 1997, which is more than six months before the date on which the application was submitted (27 August 1998).

It follows that this part of the application is out of time and should be rejected in accordance with Article 35 § 4 of the Convention.

5. Invoking Articles 6 and 13 of the Convention as well as Article 5 of Protocol n o 7, the applicant complains about the unfairness of the proceedings before the Genoa Youth and District Court. In so far as relevant, these provisions read as follows:

Article 6

" In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”

Article 13

" Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

Article 5 of Protocol n o 7

"Spouses shall enjoy equality of rights and responsibilities of a private law character between them, and in their relations with their children, as to marriage, during marriage and in the event of its dissolution. This Article shall not prevent States from taking such measures as are necessary in the interests of the children."

The applicant considers that the judicial separation proceedings had been conducted in a discriminatory way and that the competent judges were not “impartial”. He furthermore complains about the decisions adopted by the national tribunals, contests the conclusions reached by L. in his final report and criticises the legal assistance provided by the lawyers of his own choosing.

The Court considers that it is not necessary in this case to answer the question whether the applicant has exhausted all the remedies which were available to him under Italian law, since this part of the application would in any case be inadmissible, for the following reasons.

The Court first notes that the applicant has failed to indicate any element that could cast doubts on the impartiality of the judges dealing with his case. It moreover recalls that it is not competent to deal with an application directed against private persons. Furthermore, the Court will not examine alleged errors of law or fact by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. As a general rule, the assessment of evidence is a matter for the jurisdiction of the domestic courts (see, inter alia , the Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports 1999, § 28) and cannot be examined by the Court unless there is reason to believe that the tribunals drew arbitrary or grossly unfair conclusions from the facts submitted to them. In the present case, there is nothing to suggest that the Genoa Youth and District Court assessed the evidence in an arbitrary or otherwise unfair manner.

The effectiveness of a remedy, for the purposes of Article 13 of the Convention, does not depend on the certainty of a favourable outcome (see the Pine Valley Developments Ltd and others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 27, § 66 ). In the present case, t he applicant had the opportunity to institute divorce proceedings, to contest his wife's allegations before a tribunal and to introduce a number of claims concerning the care and custody of his children, his right to access to them and the suspension of his parental authority.

As regards the alleged discrimination between spouses, the Court notes that it has already examined the facts alleged by the applicant under Article 8 of the Convention, and has found that the measures complained of were “in accordance with the law” and “necessary in a democratic society” for the protection of the rights of the applicant's children. The Court finds no appearance of a violation of Article 5 of Protocol n o 7.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected according to § 4 of this same provision.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis

Registrar          President