Communicated on 18 December 2013

THIRD SECTION

Application no. 22958/11 Prisco Massimo Robert Nils DE PITA against Georgia lodged on 7 April 2011

STATEMENT OF FACTS

1. The applicant, Mr Prisco, Massimo, Robert, Nils de Pità, who was born in 1974, has dual nationality of Switzerland and Italy and lives in Lausanne. He is represented before the Court by Mr A. Lestourneaud, a lawyer practising in Thonon-les-Bains, France.

A. The circumstances of the case

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

1. Marital issues

3. 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 and Italian nationality instead. The couple started their married life in the applicant ’ s house in Lausanne.

4. According to the applicant and the relevant documents contained in the case file, Mrs 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.

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

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

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

8. In the beginning of May 2009, with the permission of both parents, R. was taken by her aunt, Mrs 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.

9. However, R. was never let 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 Mrs N.A. nor the child would ever be returning to Lausanne, and that the applicant should not be worried about R. ’ s well ‑ being, which was the mother ’ s sole priority.

2. Court proceedings in Georgia

10. 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, Mrs 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 9,300 euros), be ordered to pay her child maintenance in the amount of CHF 5,000 (some 4,060 euros) per month.

11. 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 Mrs 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.

12. 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 become Mrs 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 (1,600 euros) 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. He emphasised that the child ’ s parental grandparents were also entitled to see their granddaughter from time to time.

13. By a judgment of 16 February 2010, the Tbilisi City Court allowed Mrs 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 Mrs 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 (2,840 euros).

14. 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 appreciated artist/decorator, earned well her own living. The obligation to pay the monthly allowance of some 2,840 euros 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 (1,600 euros).

15. 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 Mrs N.A and R., ruled that it was in the latter ’ s best interests 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.

16. 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.

3. Subsequent developments

17. In March 2011, the applicant requested the Swiss authorities to communicate to their Georgian counterparts the fact that the judgment of 16 February 2010 remained unenforced due to his former wife ’ s lack of cooperation. Notably, he had not been able to see his daughter despite three trips to Georgia, which he had undertaken after the judgment had become final. On 31 March 2011 the Swiss authorities transmitted the applicant ’ s complaint to the Ministry of Justice of Georgia, the authority in charge of the execution of final court decisions and international legal cooperation.

18. It was only in September 2011, after the applicant had given his consent for renewal of R. ’ s passport, that Mrs N.A. finally agreed to have the child seen by the applicant; the applicant travelled for that purpose to Georgia between 2 and 6 November 2011.

19. In February 2012 the applicant again applied to the relevant Swiss authorities, complaining that his former wife had stopped answering to his telephone calls and e-mails.

20. On 5 October 2012 the applicant made another trip to Georgia in the hope of seeing his daughter. Mrs N.A. then set him, on 6 October 2012, a new condition – the applicant could see R. in exchange for signing a financial commitment to cover the costs of the daughter ’ s schooling in Tbilisi. The applicant replied that his right to see his daughter could not be an object for bargaining. On 17 October 2012 he was summoned by the Tbilisi police for an interview. It appeared that Mrs N.A. had filed a criminal complaint against him for purported verbal threats to abduct R. from Georgia; the applicant denied those allegations. He was finally able to see his daughter on 21 October 2012; the meeting took place in his hotel in Tbilisi and was closely supervised by two unknown men, who apparently accompanied R. on Mrs N.A. ’ s request.

21. In the end of October 2012, the Swiss authorities again enquired with the Ministry of Justice of Georgia about the measures envisaged by the Georgian Government to protect the applicant ’ s right of access to his daughter on the Georgian territory. The Ministry replied by transmitting, in November 2012, a new set of conditions proposed by Mrs N.A. The case file does not account for any further developments in the case.

B. Relevant international documents

22 . At its 62 nd session, which was held between 14 January and 1 February 2013, the United Nations Committee on the Rights of the Children adopted General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration . A relevant excerpt from this document read as follows:

“(c) Preservation of the family environment and maintaining relations

... 67. The Committee is of the view that shared parental responsibilities are generally in the child ’ s best interests. However, in decisions regarding parental responsibilities, the only criterion shall be what is in the best interests of the particular child. It is contrary to those interests if the law automatically gives parental responsibilities to either or both parents. In assessing the child ’ s best interests, the judge must take into consideration the right of the child to preserve his or her relationship with both parents, together with the other elements relevant to the case. ...

70. Preservation of the family environment encompasses the preservation of the ties of the child in a wider sense. These ties apply to the extended family, such as grandparents, uncles/aunts as well friends, school and the wider environment and are particularly relevant in cases where parents are separated and live in different places.”

COMPLAINTS

23. The applicant complains 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.

QUESTIONS TO THE PARTIES

1.1. In view of the fact that, according to the case file, the applicant did not attempt either to initiate child return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 or to file a criminal complaint for abduction under the Criminal Code of Georgia, can it be argued that he has exhausted an effective and available domestic remedy, as required by Article 35 § 1 of the Convention, for his complaint under Article 8 § 1 concerning the Georgian authorities ’ inactivity towards the alleged abduction of his child by Mrs N.A.?

1.2. In the affirmative, having regard to the circumstances surrounding the applicant ’ s complaint about the Georgian authorities ’ alleged failure to react to the abduction of his child, has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?

2.1. Having regard to the circumstances surrounding the child custody proceedings in Georgia, has there been an interference with the applicant ’ s right to respect for his family life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference necessary in terms of Article 8 § 2?

2.2. Having regard to the circumstances surrounding the child custody proceedings in Georgia, has the applicant been afforded equality of rights and responsibilities as regards his spouse, pursuant to Article 5 of Protocol No. 7? If not, was that difference in treatment between the spouses necessary in the interests of their child, as foreseen by the last sentence of Article 5?