Information Note on the Court’s case-law 40

March 2002

Iglesias Gil and A.U.I. v. Spain (dec.) - 56673/00

Decision 5.3.2002 [Section IV]

Article 8

Article 8-1

Respect for family life

Alleged lack of diligence by the courts in ensuring the enforcement of decisions awarding the applicant custody of her son, in particular after her ex-husband went abroad with the child: admissible

After their divorce the first appl icant was awarded custody of her son and the second applicant, the father, was given a right to contact. In February 1997, while exercising his contact right, the father flew to the United States with the child. The applicant lodged a criminal complaint, t ogether with an application to join the proceedings as a civil party, for abduction of her child. She lodged the complaint against her ex-husband and certain members of his family who, she alleged, had aided and abetted the abduction. In an order of Februa ry 1997 the investigating judge issued a search warrant for the father and ordered the immediate return of the child to his mother. The investigating judge dismissed the applicant’s requests for the father’s mobile telephone to be tapped; for evidence to b e taken from a number of members of his family who had, she alleged, assisted in the abduction; and for a search of the head office of her ex-husband’s company and his vehicle. The investigating judge subsequently dismissed the applicant’s request for an i nternational search and arrest warrant against her ex-husband. In June 1997 the investigating judge dismissed further applications for investigative measures submitted by the applicant for the offence of contempt of court ( desobediencia ) and failure to com ply with the judgment of the Family Affairs Court. In May 1998 the investigating judge stated that, in accordance with established domestic law, a person having joint parental responsibility for a minor could not be prosecuted for the offence of abducting the child. In July 1988 he reiterated his opinion that it was not possible to issue an international search and arrest warrant for alleged contempt of court. The applicant unsuccessfully appealed against those two orders. An application challenging the inv estigating judge was dismissed in November 1997 and a request for the proceedings to be set aside was dismissed in February 1999. At the end of the investigation, in a decision of July 1998, the investigating judge provisionally discontinued the proceeding s against the applicant’s husband, while maintaining the order for the search and seizure of his assets, and definitively discontinued the proceedings against the members of his family whom the applicant had accused of aiding and abetting the abduction. Af ter unsuccessfully appealing against that decision, the applicant lodged an amparo appeal on the ground that the investigating judge’s systematic refusal to grant her request for an international search for her child amounted to a breach of the investigati ng judge’s positive obligation to protect the child and his family. She submitted, among other things, that by refusing to grant any investigative measure, the investigating judge had directly infringed her and her child’s right to private and family life. In June 1999 the Constitutional Court dismissed her appeal on the ground that it was manifestly ill-founded. In February 1999 the Family Affairs Court revoked the father’s parental responsibility for the child and awarded full parental responsibility to t he applicant. In June 2000 the applicant lodged a complaint against her ex-husband for threats and duress. In September 2000 the investigating judge provisionally discontinued the proceedings. That decision was set aside in May 2001 on appeal by the applic ant. In the meantime, in April 2000, the applicant had seen her son again for the first time since he had been abducted in February 1997. She was finally able to take him back in June 2000, with the assistance of the police, and has since then been hiding with him in a women’s shelter.

Admissible under Article 8.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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