Resolution CM/ResDH(2008)58 [1]

Execution of the judgment of the European Court of Human Rights

Bianchi against Switzerland

(Application No. 7548/04, judgment of 22 June 2006, final on 22 September 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the failure by the respondent state to take adequate and sufficient action to enforce the applicant ' s right to have his son (born in 1999) returned to Italy after abduction by the mother in Switzerland at the end of 2003 (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Switzerland ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2008)58

Information about the measures taken to comply with the judgment in the case of Bianchi against Switzerland

Introductory case summary

The case concerns a violation of the applicant ' s right to family life due to the inadequacy of measures taken by the Swiss authorities in implementation of an order for the return of his son under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (violation of Article 8).

While noting the various attempts made by the relevant Swiss cantonal authorities as from September 2004 to trace the child and the mother, the European Court nevertheless considered that their attitude, during the period between the child ' s abduction in December 2003 and their last contact with his mother on 15 August 2004 had, on the whole, been somewhat lax and as such incompatible with the object and purpose of the Hague Convention and with its wording, which was particularly clear and rigorous. This passive attitude had caused a complete break-off in contact between father and son which, given the very young age of the child, was liable to result in growing alienation between them, and that could not be said to be in the child ' s best interests. Accordingly, the Court could not consider that the applicant ' s right to respect for his family life had been protected in an effective manner.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

15 000 EUR

5 000 EUR

20 000 EUR

Paid on 28/10/2008

b) Individual measures

Towards the end of 2007 the Italian police and judicial authorities, acting in co ‑ operation with the Swiss authorities, succeeded in finding the secret hiding place of L.H. and her children, including the applicant ' s son, in Mozambique . On 26/10/2007 the mother was expelled from Mozambique for being in possession of forged travel documents and not having a residence permit. She was accompanied, with her children, to Italy , and after being detained there, she returned to Switzerland . The applicant and his son are now together. In the light of these developments, no further individual measure is necessary in this case.

II. General measures

The judgment of the European Court was sent out to the authorities directly concerned and brought to the attention of the Cantons via a circular. It was also published in Verwaltungspraxis der Bundesbehörden (Digest of Confederal Administrative Case-law), VPB 70.115, available via http://www.vpb.admin.ch/deutsch/doc/70/70.1115.html and was mentioned in the yearly report of the Federal Council on the activities of Switzerland in the Council of Europe in 2006.

Beyond those measures, which are sufficient given the very isolated and specific nature of this case, the Swiss government has taken the further initiative to lay before P arliament a draft federal law (published in the Feuille fédérale No. 16 of 17/04/2007 and also on Internet, ( http://www.admin.ch/ch/f/ff/2007/2475.pdf) and ( http://www.admin.ch/ch/f/ff/2007/2433.pdf ) (explanatory memorandum)), aimed at improving the handling of civil aspects of cases of international child abduction. This draft law provides: accelerating return procedures by conferring competence on a single cantonal court and removing other legal procedures at cantonal level; giving preference to the conclusion of friendly settlements in conflicts between parents; combining decisions on return with enforceable measures; and requiring cantons to designate a single authority in charge of enforcement. The draft law also provides that the parties should whenever possible be heard by the court and that the child or children should be heard in an appropriate manner. Lastly, the court is required, to the extent this is necessary, to work with the competent authorities of the state in which the child habitually resided immediately before being abducted. The law was adopted by the Swiss P arliament on 21/12/2007 and enters into force on 01/07/2009.

III. Conclusions of the respondent state

The government considers that the measures taken have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 25 June 2008 at the 1028th meeting of the Ministers’ Deputies