FOURTH SECTION

DECISION

Application no . 22958/11 Prisco Massimo Robert Nils DE PITA against Georgia

The European Court of Human Rights ( Fourth Section ), sitting on 19 May 2105 as a Committee composed of:

Ledi Bianku , President, Paul Mahoney, Krzysztof Wojtyczek, judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 7 April 2011 ,

Having regard to the declaration submitted by the respondent Government on 18 December 2014 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS

1 . The applicant, Mr Prisco , Massimo, Robert, Nils de Pità , who was born in 1974, has Swiss nationality and lives in Lausanne. He was successively represented before the Court by Mr A. Lestourneaud and Ms M. Marques, lawyers practising, respectively, in Thonon -les- Bains and Grenoble, France.

2 . The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze , of the Ministry of Justice. The Government of Switzerland did not wish to intervene under Article 36 of the Convention.

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

A. Marital issues

4. On 1 September 2001 the applicant married a Georgian national, Ms N.A., under the regime of separation of property. The latter subsequently forfeited her original and acquired her husband ’ s Swiss nationality instead. The couple started their married life in the applicant ’ s house in Lausanne.

5. According to the case file, Ms N.A. is a well-known and solicited artist (painter/decorator) both in Lausanne, where she owned an art gallery, and in Georgia. Thus, for instance, she was commissioned by the Georgian Government to effectuate, between 2007 and 2009, an important art project, for which work she received honorarium of 165,000 euros.

6. On 2 May 2005 a child – R. – was born in their wedlock who acquired her parents ’ Swiss nationality. The applicant and his wife started exercising joint and indivisible parental authority over their daughter, in accordance with the Swiss family law.

7. Problems in the applicant ’ s marital life started to emerge in 2007.

8. By an Ordinance no. 609 of 18 December 2008, the President of Georgia granted Georgian nationality to Ms N.A. and R. These two, without losing their Swiss nationality, thus acquired the Georgian nationality as well.

9. In the beginning of May 2009, with the permission of both parents, R. was taken by her aunt, Ms N.A. ’ s sister, to Georgia for the summer holidays. The applicant ’ s wife went to Georgia in July. It was agreed between the parents that their daughter would return back to Lausanne, which was the registered place of the child ’ s permanent residence, on 3 August 2009, so that the father could spend part of the summer holidays with his daughter and finalise arrangements for the child ’ s entry into a primary school there.

10. However, R. was not allowed by her mother to leave Georgia. The applicant, who had waited in vain in the airport of Geneva for the arrival of his daughter in the morning of 3 August 2009, received, on the same day, a letter from his wife dated 2 August 2009. The contents of that letter suggested that neither Ms N.A. nor the child would ever be returning to Lausanne, and that the applicant should not be worried about R. ’ s well ‑ being.

B. Child custody proceedings

11. The applicant subsequently learnt that his wife had initiated divorce and child custody proceedings in Georgia on 23 July 2009, that is a few days before writing to him the above-mentioned farewell letter of 2 August 2009. Notably, Ms N.A. had filed an action with the Tbilisi City Court, requesting dissolution of her marriage, exclusive custody over R. and that the applicant, whose monthly salary represented 11,485 Swiss francs (CHF) (some 11,040 euros (EUR)), be ordered to pay her child maintenance in the amount of CHF 5,000 (some EUR 4,800) per month.

12. By an injunction of 28 July 2009, the Tbilisi City Court ordered, as an interim measure, that the respondent be banned from attempting to remove R. from the territory of Georgia pending the examination of the case. Declaring Ms N.A. ’ s action admissible for an examination on the merits, the City Court transmitted it to the applicant ’ s address in Lausanne, inviting him to submit his arguments in reply within ten days after its receipt.

13. On 27 October 2009 the applicant filed his submissions with the Tbilisi City Court. He stated that he would accept the request for divorce, and agreed that his daughter ’ s place of residence became Ms N.A. ’ s address in Tbilisi. As to his wife ’ s claim for child maintenance, the applicant replied that its amount was exorbitant given that the average cost of raising a child of the same age in Georgia did not exceed 300 euros per month, and added that he would nevertheless be ready to contribute CHF 2,000 (some EUR 1,920) as a monthly maintenance. Furthermore, the applicant requested the Tbilisi City Court to entitle him to take his daughter to Switzerland for one month and a half during the summer holidays and for two weeks during the Christmas season, as well as to be allowed to spend three or four days with his daughter during his trips to Georgia.

14. By a judgment of 16 February 2010, the Tbilisi City Court allowed Ms N.A. ’ s action in part. In particular, after having confirmed its capacity to exercise jurisdiction over the dispute in the light of the claimant ’ s Georgian nationality, the court first granted divorce. It then ruled that R. ’ s place of permanent residence should be that of Ms N.A. in Tbilisi. As to the applicant, he was given a right to see his daughter every week-end, but only during the daytime and always in the presence of his former wife, without a possibility of remaining with the child alone. Furthermore, the applicant was ordered to pay, monthly, child maintenance in the amount of CHF 3,500 (some EUR 3,365).

15. The applicant filed an appeal, complaining, among other issues, that the first instance court, when fixing the amount of child maintenance, had omitted the fact that his former wife, as a well-known and solicited artist/decorator, earned well her own living. Thus, for instance, she had been commissioned by the Georgian Government to effectuate, between 2007 and 2009, an important art project, for which work she received honorarium of EUR 165,000. The obligation to pay the monthly allowance of some EUR 3,365 would represent a disproportionately heavy financial burden on the applicant, significantly reducing his economic capacity to travel to Georgia as often as he would have wanted to. Furthermore, when fixing the applicant ’ s right to see his daughter over week-ends, the first instance court had failed to take into account the fact of the father ’ s living abroad, and travelling from Switzerland to Georgia for every week-end was financially and factually unfeasible. The applicant thus requested again that the amount of child maintenance be lowered to CHF 2,000 (EUR 1,920).

16. By a judgment of 12 July 2010, the Tbilisi Court of Appeals rejected the applicant ’ s appeal as ill-founded. With respect to the amount of childcare maintenance payable by the father, the appellate court noted that, whilst admittedly the mother received remunerations for the commissioned artistic work, such kind of revenue was not of a stable nature. Consequently, the applicant, with his stable monthly salary, was under an obligation to pay child maintenance, the amount of which had been correctly set by the first instance court. As to the frequency and the manner of the implementation of the visits of the child by the father, the appellate court, having regard to an opinion of a Georgian social worker who had observed the interaction between Ms N.A and R., ruled that it was in the latter ’ s best interest to remain with the mother and not to be allowed to travel to Switzerland, as any prolonged period of absence from the mother in the fragile age of four years would have a negative impact on the child ’ s psychological stability.

17. On 12 October 2010 the Supreme Court rejected the applicant ’ s cassation appeal, which reiterated the arguments already made by the applicant before the two lower levels of jurisdiction, as inadmissible.

18. According to the case file, the judgment of 16 February 2010 remained largely unenforced despite the fact that the Ministry of Justice of Georgia, the authority in charge of international cooperation and enforcement of binding judgment, was duly aware, through formal communications sent by the Swiss Embassy in Georgia, of the difficulties encountered by the applicant. Thus, he travelled three times to Georgia between October 2010 and March 2011 in vain, as his former wife denied him the right to meet with R. on all three occasions. In September 2011 and October 2012, Ms N.A. allowed the applicant to meet briefly, for a couple of hours, with his daughter, but even that followed as a result of new conditions proposed by the former wife, such as the father ’ s consent for renewal of their daughter ’ s international passport and negotiations surrounding the applicant ’ s financial commitment to cover the costs of their child ’ s international schooling in Tbilisi.

COMPLAINTS

19. The applicant complained under Article 8 of the Convention and Article 5 of Protocol No. 7 about the Georgian authorities ’ failure to react to the abduction of his daughter by his former spouse, contrary to the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, and the domestic courts ’ allegedly arbitrary rulings in the childcare custody proceedings.

THE LAW

20. On 18 December 2013 notice of the application was given to the Government.

A. The complaint under Article 8 of the Convention about the child custody proceedings

21. After unsuccessful friendly-settlement negotiations, by letter dated 18 December 2014 the Government informed the Court that they proposed to make a declaration with a view to resolving one of the issues raised by the application.

22. Thus, the Government acknowledged a violation of Article 8 of the Convention on account of the domestic courts ’ decisions in the child custody proceedings. In that connection, they first explicitly acknowledged that the applicant would be entitled to address to the relevant domestic courts with a request for the re-opening of the relevant proceedings on the basis of a decision/judgment adopted on the matter by the Court (Article 423 § 1 (g) of the Code of Civil Procedure), and that the domestic courts will use their best endeavours to examine the re-opened child custody dispute promptly, by having due regard to the relevant principles of the Court ’ s case-law on the matter. The Government also undertook to pay the applicant 7,000 (seven thousand) euros to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, which will be converted into the national currency at the rate applicable on the date of payment, and will be free of any taxes that may be applicable, and it will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this sum within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. They further requested the Court to strike out the application.

23. On 29 January 2015 the Court received a letter from the applicant. After having given additional reasons in support of the existence of a violation of Article 8 in the present case, the applicant invited the Court to endorse the terms of the Government ’ s unilateral declaration by noting in its decision the express acknowledgement of the violation of his right under Article 8 of the Convention by the Government as well as their consequent undertakings to remedy efficiently the wrongful situation and to pay him, in addition, the above-mentioned sum .

24. Having regard to the applicant ’ s complaint under Article 8 of the Convention about the domestic courts ’ arbitrary rulings in the childcare custody proceedings , the Court finds that following the applicant ’ s endorsement of the terms of the declaration made by the Government, the case should be treated, in substance, as a friendly settlement between the parties. It therefore takes note of the terms of this friendly settlement, attaching significance to the Government ’ s acknowledgement of the applicant ’ s right to request re-opening of the child custody proceedings under Article 423 § 1 (g) of the Code of Civil Procedure. Reminding the applicant that the supervision of the execution of the friendly settlement terms is the prerogative of the Commi ttee of Ministers (Article 39 § 4 of the Convention), the Court is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

25. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaint .

B. The remainder of the application

26. Relying on Article 8 of the Convention , the applicant also complained that the Georgian authorities ’ failed to react on the abduction of his daughter by his former spouse.

27. The Government objected that the complaint was inadmissible for non-exhaustion of domestic remedies. Thus, recalling that the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction entered into force with respect to Georgia on October 1997, they noted that the applicant never attempted to initiate child return proceedings under that international legal instrument. The applicant disagreed.

28. Having regard to the available case materials, the Court observes that the applicant never voiced his grievance about the abduction of the child by his former wife before the Georgian authorities. Thus, he neither attempted to initiate child return proceedings under the Hague Convention (contrast with X v. Latvia , no. 27853/09, §§ 17-24, 13 December 2011) nor filed a criminal complaint for abduction under the Criminal Code of Georgia (contrast with Qama v. Albania and Italy , no. 4604/09, §§ 69 ‑ 74, 8 January 2013). It follows that this particular complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

29. Lastly, the applicant reiterated his complaint about the arbitrary findings of the domestic courts in the child custody proceedings under Article 5 of Protocol No. 7.

30. However, having regard to the terms of the friendly settlement reached between the parties (see paragraph 24 above), notably the explicit acknowledgement that the domestic courts ’ decisions were in violation of the Convention coupled with their clear undertaking to remedy the consequent wrongful situation by re-opening the relevant court proceedings, the Court considers that the same issues do not merit a second, separate examination under Article 5 of Protocol No. 7.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of c ases in accordance with Article 39 of the Convention in so far as it concerns the complaint under Article 8 of the Convention relating to the arbitrariness of the child custody proceedings;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 11 June 2015 .

Fatoş Aracı Ledi Bianku Deputy Registrar President