EUROPEAN COURT OF
HUMAN RIGHTS
CASE OF SCOZZARI AND GIUNTA v.
(Applications nos.
39221/98 and 41963/98)
|
KEY WORDS: RESPECT FOR FAMILY
LIFE ; INTERFERENCE {ART 8} ; PROTECTION OF HEALTH {ART 8} ; PROTECTION OF
MORALS {ART 8} ; PROTECTION OF THE RIGHTS AND FREEDOMS OF OTHERS {ART 8} ; NECESSARY
IN A DEMOCRATIC SOCIETY {ART 8} ; INHUMAN TREATMENT ; RIGHT TO EDUCATION ;
EXECUTION OF JUDGMENT ; MEASURES OF A GENERAL CHARACTER ; INDIVIDUAL MEASURES
; INHUMAN PUNISHMENT |
JUDGMENT
In the case of Scozzari
and Giunta v. Italy,
The European Court of
Human Rights, sitting as a Grand Chamber composed of the following judges:
Mr L.
Wildhaber, President,
Mr J.-P. Costa,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
Mr L. Caflisch,
Mr I. Cabral Barreto,
Mr W. Fuhrmann,
Mr K. Jungwiert,
Mr M. Fischbach,
Mr B. Zupancic,
Mrs N. Vajic,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska,
Mr T. Pantîru,
Mr E. Levits,
Mr K. Traja,
Mr C. Russo, ad hoc judge,
and also of Mr M. de Salvia, Registrar,
Having deliberated in
private on 26 January and
Delivers the following
judgment, which was adopted on the last- mentioned date:
PROCEDURE
1. The case was
referred to the Court, in accordance with the provisions applicable prior to
the entry into force of Protocol No. 11 to the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”)1, by the European Commission of Human Rights (“the
Commission”) and by the Italian Government (“the Government”) on
4 December 1998 and 21 January 1999 respectively (Article 5 § 4 of
Protocol No. 11 and former Articles 47 and 48 of the Convention).
2. The case
originated in two applications (nos. 39221/98 and 41963/98, which have been
joined) against the
3. The first
applicant lodged the first application with the Commission on
4. The first
applicant alleged a violation of Article 8 of the Convention on account of the
decision of the Florence Youth Court to suspend all relations between her and
her children and to place them with “Il Forteto”, a community, and of the fact
that she was unable to see her younger son. The second applicant complained
that no consideration had been given to the possibility of her being given the
care of the children. The applicants also complained of violations of Article 6
§ 1 and Article 14 of the Convention, on account of the delay in hearing their
appeals and of allegedly discriminatory treatment. Lastly, the first applicant
complained of a violation of Article 3 of the Convention on account of
allegedly inhuman treatment inflicted on the children in the community, and of
Article 2 of Protocol No. 1 on the ground that the arrangements made for the
children's schooling were, in her submission, insufficient.
5. On
6. The
Government were represented by their Agent, Mr U. Leanza, Head of the
Diplomatic Disputes Department, Ministry of Foreign Affairs.
7. On
8. The applicants
filed memorials on 3 March, 16 July and
9. A hearing
took place in private in the
There appeared before the
Court:
(a) for the Italian
Government
Mr V. Esposito, magistrato, on secondment
to the Diplomatic Disputes Department,
Ministry of Foreign Affairs, Co-Agent,
(b) for the applicants
Mrs A Mazzarri, of the Livorno Bar Counsel,
Mrs D. Scozzari,
Mrs C. Giunta, Applicants;
(c) for the Belgian Government
Mrs A. Davis,
Mrs M. Gillet, Counsel.
The Court heard addresses by them.
10. On
THE FACTS
I. THE CIRCUMSTANCES OF THE
CASE
A. Events leading up to
the intervention of the authorities in the first applicant's family life
11. The first
applicant met N.A., the father of her children, in
12. The elder
child was born while N.A. was still in prison. Subsequently, the first
applicant and N.A. married. On an unspecified date in 1993 N.A. failed to
return to the prison and has remained on the Belgian authorities' wanted list
ever since. In fact, N.A. and the first applicant had travelled to
13. In February
1994 the younger son was born. However, the atmosphere in the family had begun
to deteriorate. Arguments between the parents became worse and ended in
outbursts of violence against the first applicant, who subsequently lodged a
complaint against her husband (the Court has not been informed of the outcome
of those proceedings).
14. In the
meantime, M.L., a social worker employed by social services in the
15. Shortly
afterwards the elder son started to have health problems. The first applicant
took him to hospital several times but the problems were initially attributed
to an inadequate diet.
16. In November
1996 the first applicant said that she did not want M.L. to visit her son any
more. He then started to see the child at the first applicant's home and only
in the presence of his parents. The first applicant sought to stop him seeing
her son, but that had psychological repercussions on the boy, who tried to see
M.L. without his parents' knowledge.
17. A short
while later the boy informed a friend of the family about “unusual games” in
which M.L. had persuaded him to participate on several occasions. On learning
of their son's admission, the first applicant and her husband lodged a formal
complaint with the police on
18. An
investigation was started. The investigators rapidly discovered a number of
factors showing M.L. to be at the centre of a paedophile ring. In particular,
he was accused of having indecently assaulted several children since 1986 by
taking advantage of his connections with social services and his role as a
social worker (some of his presumed victims had been placed in homes and one
even entrusted into his care by the Palermo Youth Court). M.L. was also accused
of selling photographs taken during his sexual encounters with children,
including the first applicant's elder son, and of running a drug-trafficking
ring.
19. On
20. Meanwhile,
social services began to examine the situation of the first applicant's family
more closely. In a report of 30 January 1997, the case worker, Mrs S.G., stated
that there was a serious conflict between the parents (the first applicant had
complained about the situation to various authorities the previous summer) and
difficulties in securing their effective cooperation. In a second report of
21. On 25
February 1997 the Florence Youth Court ordered that the children and their
mother should stay in a home designated by social services. It referred in
particular to the complaint concerning the sexual abuse allegedly suffered by
the first applicant's elder son.
22. In a report
of 12 March 1997, social services indicated that it was difficult to find a
home ready to accommodate both the children and their mother. Moreover, the
first applicant had refused to be separated from her children and the elder boy
had said that he wanted to stay with her. All three were provisionally
accommodated in a hostel ran by Caritas, a charity. On the first applicant's
initiative, the children began to attend school again. Social services also
described the first applicant in that report as being unstable and fragile.
23. In March
1997 social services noted that it was impossible for Caritas to continue to
provide a home for the first applicant. They also said that she seemed incapable
of following a suitable programme for the protection of the children and that
there were doubts as to her effective capacity to look after them. In addition,
she had continued to see a man both on and off the premises and indicated that
she wanted to return home, as her husband was no longer violent towards her.
24. A
neuropsychiatrist employed by the local health authority stated in a report of
“...
Mrs ... appears incapable of gauging reality and adapting her behaviour
appropriately. She seems very confused about how to recount matters and about
irrational acts. She is incapable of distinguishing between what is good and
what is bad for the child and therefore incapable of protecting him; she
alternates between times when she appears very childlike, in accordance with
the idealised image of the mother, and times when she places G. in an adult
role with seductive and subtly perverse traits.
I
can conclude that Mrs ... presents a serious personality disorder that at times
affects the sphere of knowledge and ideation and at others the emotional and
relational sphere, and that the hypothesis of a clinical 'borderline case' can
be advanced.
As
matters stand, Mrs ... shows that she is not capable of managing the extremely
complex family situation and G.'s particularly sensitive situation, still less
of creating a sufficiently positive environment for him.”
25. It was
noted in a school report of 10 June 1997 that the elder boy was becoming
increasingly agitated and that the first applicant's attitude to both her son
and school staff had tended to be highly erratic: at times aggressive, at
others attentive. According to the school, it had proved very difficult to
establish a constructive dialogue with her. A report by the social worker the
following day confirmed the elder boy's increasing difficulties.
26. On
27. It was
stressed in a private medical report lodged at the time that the boy, who was
in terror of the priest who ran the home, needed a peaceful environment rather
than to be surrounded by other children whose past was just as tragic as his
own.
28. The younger
child was transferred to another home in the meantime.
29. On 8
September 1997, at the end of a meeting attended by, inter alia, social
workers and specialists who had been supervising the first applicant and her
children, the representatives of the relevant social-services department
concluded that the children needed to be separated from their natural family
and recommended their placement in a community, “Il Forteto”, which was
organised as an agricultural cooperative.
30. On 9
September 1997 the Florence Youth Court ordered the two children's placement at
“Il Forteto”, pursuant to Article 333 of the Civil Code (Condotta del
genitore pregiudizievole ai figli – “parental behaviour harmful to the
children”), suspended the father's and the mother's parental rights pursuant to
Article 330 of the Civil Code (Decadenza dalla potestà sui figli –
“lapse of parental rights”), ordered that if the parents refused to comply, the
decision was to be enforced with police assistance, and granted the parents the
right to visit the younger son only, such visits to take place on the
cooperative's premises and in the presence of members of its staff. The Youth
Court observed, inter alia, that the parents had been uncooperative and
had on one occasion taken the elder child from the home where he had previously
been staying despite the protests of his carers. It also criticised the parents
for having exposed the elder boy to a tragic situation – of which he had been
the victim – over a lengthy period, without exercising the supervision which
was expected of them as parents, or being alert to the alarm signals given by
the child. Conversely, those signals had not escaped the attention of school
staff, who had tried in vain to establish a dialogue with the family. Lastly,
the Youth Court ordered social services to monitor the children's situation
closely and to produce a proposal for the children's rehabilitation, based on
what was observed.
B. Matters relating the “Il Forteto” community
31. The case
file reveals that at the end of the 1970s the cooperative was the subject
matter of a criminal investigation into acts of bestiality and paedophilia
allegedly committed there by three of its founder members. Two of them, L.R.F.
and L.G., were arrested and later released, but nevertheless committed for
trial.
32. On
(i) both L.R.F.
and L.G. were guilty of ill-treating a handicapped
18-year-old girl who had stayed at the home for a few days by, inter alia,
hitting her several times a day, insulting her in the presence of others,
preventing her from communicating with the outside world and mocking her
physical appearance. In addition, L.R.F. had spat in her face and, as an act of
contempt, exposed himself to her.
(ii) L.R.F. was
also found guilty of having sexually abused (atti di libidine violenti)
two mentally handicapped males, on one occasion in the presence of a
13-year-old minor.
33. L.R.F. was
sentenced to two years' imprisonment and L.G. to ten months' imprisonment. They
were nonetheless granted a stay of execution and the order banning them from
holding public office was quashed. They also received an amnesty for an offence
of wrongfully holding themselves out (usurpazione di titolo) as
psychologists holding diplomas from the universities of
34. Their
appeal to the Court of Cassation was dismissed on
35. Both men remain
on the staff working at the cooperative. In addition, one of them, L.R.F., was
present during the aforementioned contact visit on
36. The case
file and, in particular, one of the books published on “Il Forteto” (Ritratti
di famiglia, Florence, 1997), revealed that some of the people working in
the community, or who have been staying there, come from problem families and
have suffered violence at the hands of paedophiles.
37. In support
of her allegations, the first applicant has also produced various statements in
writing, beginning with statements by three people who have given their
identity and whose respective niece, sister and daughter stayed, for various
reasons, at the community in question. The relevant extracts are set out below.
38. Statement
of the first witness:
“...
the little girl recognised me and came towards me; a man standing next to her,
came towards us and told us to leave ... I went to 'Il Forteto' on another
occasion in 1997 ... I tried a number of times but always received negative
replies ...”
39. Statement
of the second witness:
“...
the girls who went to 'Il Forteto' were malnourished and demoralised. My sister
was one of them. When she returned to my mother's house she didn't speak and
couldn't express her ideas coherently; my mother and I had to feed her with a
teaspoon for several months ...”
40. Statement
of the third witness:
“...
in May 1991, late in the evening in the presence of other members of the
family, she was so frightened that she could not even manage to explain and
kept repeating that she did not want to go back to 'Il Forteto'. That made us
aware that terrible things are going on at 'Il Forteto'. She had to go back
because they were blackmailing her ... She had in the past been hit by ... G.
... L. ... for refusing to participate in certain acts of violence which she
did not want ... I am prepared to give evidence before the
41. The
applicants have also produced two other witness statements in writing. Both are
signed.
42. The first
is by a municipal councillor from a village in the region. She affirmed that
the children's guardian, whom she already knew and to whom she had referred for
information on the case, had advised her not to get involved. Furthermore,
according to her statement, L.R.F. had invited her to visit the community after
she had expressed doubts about it in public at a ceremony for the presentation
of one of the books published on the community. Despite her repeatedly
expressed wish to meet the children, she was consistently denied an opportunity
to do so, various reasons being given.
43. The second
statement was made by two officially assigned experts working for the Florence
Youth Court who had had a role in the case concerning the first applicant's
children. According to their statement, the two experts – one a neurologist,
the other a psychiatrist, and both directors of a family-therapy medical centre
in Florence – had asked “Il Forteto” to allow trainees from the centre to work
at the community or at least to visit it. On each occasion, their requests were
turned down for reasons which the experts found “absurd”, such as, for example,
the fact that the community was not a public institution. A student from the
centre, attending a training course recognised by the Tuscany Region in
1996/97, had nonetheless managed to gain access to the community during his
studies. During his visit he learnt from one of the leaders of the home that
the families looking after the children were not necessarily the ones formally
named in the court order.
44. The
applicants also referred to passages taken from one of the books published on
the community (Il Forteto, Florence, 1998).
45. They quote,
inter alia, the following passages relating to the vexed issue of the
presence of certain adults at the home:
“Therefore,
they each decided to share a mutually enriching experience with the others
which would assuage the affective deficiency which had been their driving
force” (p. 94). “Thus each member found and continues to find, through this
experience, a sense of belonging, cohesion and love which elsewhere, in his
family of origin, was lacking” (p. 95)
46. The
applicants also quote the following passage, which refers to the authorities
implicated in the criminal proceedings against some of the leaders of the
community:
“Many
years have passed and the case has become clearer as the evidence of the
machinations against them, which even today is kept in the villa, has been gathered.
Even in that regard they display a Christian attitude which, frankly, I envy.
Today, they could easily bring criminal proceedings or an action in damages
against certain judicial officers, but do not do so ... At the time, the
behaviour of the judicial authorities was schizophrenic. While making
accusations against 'Il Forteto' via the Florence Public Prosecutor's Office,
they continued to place children in the care of that structure through the
Youth Court. S ... was put into R ... at precisely that time” (p. 31)
C. Suspension of contact between the first applicant and
her children until the decision of the
47. Within the
community, the children were put into the care of Mr G.C. and Mrs M.G.,
the couple designated in the court order of
48. On 10 and
49. On
50. On the same
day the psychology unit at the local health authority (Unità sanitaria
locale) certified that the first applicant was in good psychological
health.
51. On
52. On
53. Other
attempts by the first applicant to see her younger son by going directly to “Il
Forteto” were unsuccessful. Subsequently, there was a deterioration in
relations between the first applicant and certain leaders of the community
responsible for her children. The latter lodged a complaint against her
accusing her of having threatened and assaulted them verbally and physically.
They alleged that, on at least one occasion, she had done so with the
assistance of her former husband, whom, they said, she continued to see (a
letter relating the incidents was sent on 7 January 1998 to the public
prosecutor and to the Youth Court; it bore the signature of L.G.).
54. On
55. On
56. On
57. On
58. Following
the various steps taken by the first applicant, the Florence Youth Court noted
in an order of
59. On
60. On
61. Subsequently,
the relevant social services department held preparatory sessions with the
first applicant on 21 April, 19 May and
62. There was a
meeting of all the services concerned on
63. The first
applicant had requested that her lawyer also be allowed to attend the visits
and informed the Youth Court of that request. However, it was turned down on
the ground that the presence of undesignated persons was not envisaged and, in
addition, the therapeutic nature of the arrangements made it necessary to
restrict attendance to the specialists from public bodies.
64. On 22 June
1998, however, the first applicant said that she was unwilling to see the
younger child without his brother in view of the probable suffering that the
elder child would endure on learning that only his younger brother was to be
allowed to meet their mother. On
65. On
“...
we do not want the children to nurture absences which could develop into
internal fantasies and consequently bring contact with their parents to an
abrupt and definitive end, but we consider it very important to put off such
contact to a more suitable moment and to give the children sufficient time to
absorb the negative and guilt-ridden images which their parents evoke ...”
66. On
67. On
68. On
69. In a note
of
70. In
addition, R.L., a neuropsychiatrist responsible for assessing the children,
stated in a report of
D. Action taken by the second applicant
71. On
72. On
73. On
74. At the end
of the hearing on
75. Subsequently,
the second applicant nonetheless appealed against that decision, her principal
claim being to parental rights over the children. In the alternative, she asked
to be allowed to see them at least twice weekly without prior counselling,
since she was in any event prevented from attending such a course as she could
not remain in
76. On
77. Meanwhile,
on
78. On
E. Decision of the
79. On
80. On
81. On
82. On
83. On 9
February 1999 a social worker from Vicchio (Mrs S.C.) and the
child-neuropsychiatrist, Mr R.L., who were responsible for monitoring the
progress of the first applicant's children and who had already prepared a
programme of meetings with the children and the foster parents, informed the
Youth Court that they had reservations as to the appropriateness of their being
asked to counsel the children's father and grandmother with a view to contact.
According to the social services department, there was a danger that the close
proximity of the children would create tensions, added to which it did not know
either the father or the grandmother. For those reasons, it suggested that they
should receive preparatory counselling from their local social services.
84. On
85. On 15
February 1999 the Youth Court replied, inter alia, to the Social
Services Departments of Figline Valdarno and Vicchio; it informed them that the
court proceedings had finished and that, accordingly, the administrative and
organisational matters were to be dealt with by social services. It remarked,
too, on the length of time that social services had taken since its decision
and reminded them that they should be giving it their urgent attention.
86. On
87. On
88. On
89. A few days
later G. informed the Youth Court that after his experience with the specialist
he did not wish to meet his mother or grandmother for at least three months.
90. After the
first applicant had received preparatory counselling, the initial contact with
the children nonetheless took place on
91. However,
having viewed the video recordings of that first visit produced by the
Government (see paragraph 10 above), the Court has found nothing to support the
appraisal and unfavourable comments of social services to which the Government
refer. The visit took place in a room in the psychology unit at the social
services department. It was friendly and the atmosphere was reasonably relaxed.
Towards the middle of the visit the elder son began to cry, very probably when
old wounds from his dramatic past were reopened. The episode was brief, he
appeared relieved afterwards and calm was quickly restored between the first
applicant and the children. Social services displayed an evident lack of tact
towards the first applicant. Two people – either social workers or specialists
– were present in the room throughout the visit so that the first applicant was
at no stage able to enjoy any intimacy with her children, added to which, the
visit was ended rather abruptly. The Court's view is that overall, though
tense, the relationship between the first applicant and her children was warm
and relaxed. The first applicant behaved responsibly throughout the visit,
proved ready to cooperate and was respectful. Although the children did not
manifest any obvious regret when the visit ended, the Court considers that the
terms summarised above which social services used in their reports to describe
the visit were unduly dramatic and unfavourable to the first applicant, and do
not correspond to what was seen on the video recording produced by the
respondent Government.
92. That
notwithstanding, the elder child wrote to the social workers on
93. A second
visit took place on
94. However,
having examined the audio recordings produced by the Government (see paragraph
10 above), the Court has found nothing to support social services' position.
The arrangements for this visit appear to have been similar to those for the
first in that, in particular, it was held on premises belonging to social
services, again in the presence of two specialists. The following points
arising from the focal points of the visit have enabled the Court to identify
once more discrepancies between social services' official report and what was
heard on the recording. In particular:
(i) the report
does not mention the fact that the first applicant asked the children whether
they were happy to see her again or that they said that they were;
(ii) the elder
son did not raise the question of his mother's role in the paedophile assaults
on him on his own initiative, as the report seems to suggest, but was prompted
to do so by one of the two specialists present;
(iii) after the
visit was over, one of the specialists told the first applicant that in reality
her elder son had not wanted to see her again and that the new visit had only
proved possible thanks to the efforts of the other specialist present;
(iv) the
experts said that whether there were to be further visits would depend on the
elder son and that the first applicant would be able to see her younger son “if
possible”, to which she had reacted by asking them what they meant by the
latter expression, but the specialists had replied that the answer did not
depend on them.
95. On
96. On
(i) the elder
child was in the process of acquiring a new identity marked by the suffering
from the past and, consequently, did not appear to be being manipulated;
(ii) he
considered it preferable not to see his mother again during the next two years;
(iii) social
services had decided to suspend all contact between the first applicant and her
children, while at the same time continuing to counsel her with her a view to
keeping her informed of any changes in the children's attitude on that subject.
97. As to the
father, he has not visited the children at all, despite the fact that
preparatory counselling sessions with social services were held at the end of
1999. From a report by social services dated 8 November 1999, it would appear
that the father was aware of the evolution of the situation between his former
wife and the children, and in particular of the negative outcome of the visit
on 9 September 1999. The first applicant maintains, however, that she was no
longer in touch with him and that he spent his time travelling between
F. Further appeals by the applicants
98. On
99. The first
applicant also challenged the decision to keep the children at “Il Forteto” and
requested their placement elsewhere, arguing:
(i) that it was
difficult for the parents of children staying in the community to gain access
to them;
(ii) L.R.F. and
L.G. remained the most important figures at “Il Forteto”, despite their
convictions;
(iii) the
foster parents at “Il Forteto” were doing all they could to hinder a resumption
of relations with the children.
100. The second
applicant also appealed.
101. On 22
March 1999 the children's guardian intervened in the proceedings before the
Court of Appeal, requesting the suspension of contact for several months, inter
alia, on the grounds that:
(i) the first
applicant had largely exaggerated her professional qualifications;
(ii) for
several years she had failed to notice what her elder son, G., was going
through, which demonstrated that she was incapable of assuming her role as
mother;
(iii) the
grandmother had always lived in
(iv) the
children's father was a fugitive criminal after his escape from prison in
(v) “Il
Forteto” was a cooperative that was internationally famous for its production
of milk and cheeses, but also an innovative home for the protection of children
in distress that had been founded by twenty families who had never abandoned
it. While it was true that two of its members had convictions (although they
were not, in any event, members of the family looking after the first
applicant's children), it was equally true that such prosecutions could be
based on false evidence. Furthermore, over a twenty-year period, some seventy
children had been placed with the cooperative by courts from regions all over
Italy and a number of those care orders had subsequently resulted in adoptions,
thus confirming the validity of that option and the courts' confidence in “Il
Forteto”.
102. The public
prosecutor at the Court of Appeal requested that the children be put into the
care of their grandmother or, failing that, of another family.
103. On
104. The first
applicant appealed to the Court of Cassation. As to the placement of the
children at “Il Forteto”, she observed that even though the children were not
in the immediate care of the two leaders with convictions, it had been the
latter who had brought the foster parents into the home and trained them
(L.R.F. had even become the president of the cooperative). Moreover, L.G.'s
wife was actively involved in looking after the children, the elder son, G.,
having admitted in his letter of 2 March 1999 that it had been she who had
helped him to interpret his doubts about his mother.
105. The Court
has not been informed of the outcome of the proceedings before the Court of
Cassation.
106. On 25 October
1999 the first applicant asked the guardianship judge to request that contact
visits be arranged at more regular intervals than in the past and to permit a
psychologist to interview the children in “Il Forteto” and attend the
counselling sessions prior to the visits. On
107. In a
decision of
108. The first
applicant appealed against that decision. She argued, inter alia, that
the Youth Court had accepted social services' conclusions regarding the
negative results of the visits as they stood; it had failed in its duty to
supervise the implementation of its decisions critically and with the help of
relevant objective evidence such as the audio-visual recordings which she had
asked to be produced. In her submission, apart from the fact that she failed to
see how a visit which she had been looking forward to for years could have been
interpreted so negatively, her right to examine the recordings was all the more
founded in that it would help her gain a better understanding of herself and to
adapt her behaviour. It was, furthermore, absurd for the Youth Court to refuse
to examine the recordings itself or to allow the guardianship judge to do so.
Lastly, the presence at the preparatory sessions and during contact visits of a
specialist chosen by the applicant would help her to take part in her
children's family and psychological development, particularly as there was no
statutory provision to prohibit a parent from seeking the additional help of
private psychologists to prepare for re-establishing relations with his
children.
109. In a
decision of
G. The programme of visits by the second applicant
110. The second
applicant was invited on
111. According
to the report prepared by social services, the second applicant complained at
that session that she had not been given an appointment in March 1999 and said
that she could not leave
112. According to
the most recent information received from the first applicant, the second
applicant will be required to reimburse a substantial sum to the
H. Subsequent developments in the criminal proceedings
against the first applicant
113. On
114. The child
confirmed his accusations on questioning by the public prosecutor on
115. On
“What
I have said up to now is the simple truth. I would have no difficulty in
confirming what G. has said if it were true ... I believe that G. has invented,
at least in part, what he has said because of bitterness towards his parents.
G. had a very poor relationship with his father, but adored his mother. Perhaps
he later became rather bitter because he felt that she had not done enough to
protect him. If I could confirm what he has said I would do so, to help him,
too.”
116. On
117. In
addition, on an unspecified date and in circumstances that have not been
clarified, the first applicant's sister was heard by the Florence Youth Court.
She stated that she was living with her mother and one of her brother's at
Figline Valdarno and that another brother, who had been involved in drug
trafficking, had been killed. An elder brother who had not forgiven her for
having intervened as a civil party in the criminal proceedings instituted
following the death of the other brother had accused her of attempted murder.
According to the record of her sister' statements, the first applicant had also
been charged.
I. Other information relating to the children's mental and
physical welfare
118. In a
certificate of
119. In
addition:
– a doctor's
certificate dated
– a certificate
by another doctor dated
120. A
certificate drawn up by a paediatrician on
121. In
addition, the school report on the elder child for the school year 1997/98 and
a report by the teachers stated that he was working hard and making constant
progress.
122. Social
services said in a report of
123. Lastly, in
their last report (29 March 2000) social services said that the younger child
was now attending nursery school and his relations with the teachers were very
good.
II. RELEVANT DOMESTIC LAW
124. Article
330 of the Italian Civil Code provides:
“The court may declare parental rights forfeit if the parents do not perform or
neglect the obligations inherent in their parental role or abuse the powers
related thereto causing serious detriment to the child.
In
such eventuality, the court may, if there are serious grounds for so doing,
order the child's removal from the family home.”
125. Article
333 of the Civil Code provides:
“Where the conduct of one or both parents is not such as to give rise to their
parental rights being declared forfeit under Article 330, but is nonetheless
detrimental to the child, the court may adopt any measure that is appropriate
in the circumstances and may even order the child's removal from the family
home.
These
measures may be revoked at any time.”
126. Furthermore,
Law no. 184 of 4 May 1983 on the fostering of minors and adoption, provides, inter
alia, that a minor who has temporarily been deprived of a satisfactory
family environment may be placed with another family, with a family-type
community, or if it is not possible to provide him with a satisfactory family
environment, in a children's home (section 2).
127. Section 4
of that law provides, inter alia, that among other matters that must be
stipulated in an order placing the child with a family is its provisional
duration (paragraph 3). In addition, section 5 provides that the family, home
or community in whose care the child is placed must facilitate relations
between the minor and his natural parents and his reintegration in his original
family.
128. Section 9
imposes an obligation on children's homes to send six-monthly reports to the
guardianship judge on the minor, his relations with the family of origin and
his mental and physical welfare. The provision also requires the guardianship
judge to report to the youth court on abandoned children in the home and to
carry out six-monthly inspections.
129. Lastly,
section 12 provides, inter alia, that where investigations have revealed
the existence of relatives or other family members up to the fourth degree who
have maintained meaningful contact with the minor and whose whereabouts are
known, the president of the court shall order their attendance at court
(paragraph 1). After hearing them, the president of the court may give them
such instructions as shall be necessary to ensure that the minor receives
emotional support, maintenance, an education and an upbringing (paragraph 3).
the law
I. ALLEGED VIOLATION OF
ARTICLE 8 OF THE CONVENTION
130. The first
applicant, who purported also to be acting on behalf of her children,
complained of infringements of Article 8 of the Convention in that her parental
rights had been suspended, her children had been taken into care, the
authorities had delayed before finally allowing her to see the children, too few
contact visits had been organised and the authorities had placed the children
at “Il Forteto”.
131. The second
applicant also alleged a violation of Article 8, complaining that the
authorities had discounted the possibility of her being given the care of her
grandsons and delayed organising contact with them.
132. Article 8
is worded 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.”
133. The
Government contested the applicants' arguments.
134. The
Commission expressed the opinion that that there had been no violation on
account of the suspension of parental rights or the children's placement at “Il
Forteto”, and no violation of the second applicant's rights. Conversely, it
considered that there had been a violation of Article 8 as regards contact
between the first applicant and her children.
A. The Government's preliminary objection regarding the
first applicant's standing also to act on her children's behalf and,
consequently, the Belgian Government's standing to intervene in the proceedings
135. The
Italian Government contested, firstly, the first applicant's standing also to
act on behalf of her children, as her parental rights had been suspended on
136. The
Government went on to contend that the Belgian Government had no standing to
intervene, since their intervention was based solely on the fact that the elder
child was a Belgian national.
137. The
Commission rejected that objection, noting that it was clear from the first
application that the first applicant's children were also applicants and
represented by the same lawyer in the proceedings before it. It added that
there was nothing to prevent minors applying to the Commission. Indeed, there
was all the more reason to allow them to do so where they were represented by a
mother who had a conflict of interest with the guardian whom the public
authorities had entrusted with the task of looking after the children's
interests in her stead.
138. The Court
points out that in principle a person who is not entitled under domestic law to
represent another may nevertheless, in certain circumstances, act before the
Court in the name of the other person (see, mutatis mutandis, the
Nielsen v. Denmark judgment of 28 November 1988, Series A no. 144, pp. 21-22,
§§ 56-57). In particular, minors can apply to the Court even, or indeed
especially, if they are represented by a mother who is in conflict with the
authorities and criticises their decisions and conduct as not being consistent
with the rights guaranteed by the Convention. Like the Commission, the Court
considers that in the event of a conflict over a minor's interests between a
natural parent and the person appointed by the authorities to act as the child's
guardian, there is a danger that some of those interests will never be brought
to the Court's attention and that the minor will be deprived of effective
protection of his rights under the Convention. Consequently, as the Commission
observed, even though the mother has been deprived of parental rights – indeed
that is one of the causes of the dispute which she has referred to the Court –
her standing as the natural mother suffices to afford her the necessary power
to apply to the Court on the children's behalf, too, in order to protect their
interests.
139. Moreover,
the conditions governing individual applications are not necessarily the same
as national criteria relating to locus standi. National rules in this
respect may serve purposes different from those contemplated by Article 34 of
the Convention and, whilst those purposes may sometimes be analogous, they need
not always be so (see the Norris v. Ireland judgment of 26 October 1988, Series
A no. 142, p. 15, § 31).
140. Therefore,
since the first applicant also has standing to act on behalf of the children,
the Belgian Government are entitled to take part in the proceedings within the
meaning of Article 36 § 1 of the Convention and Rule 61 § 2 of the Rules of
Court, as the elder child also has Belgian nationality.
141. The Court
accordingly concludes that the Government's preliminary objection must be
dismissed, both as regards the locus standi of the first applicant's
children and the standing of the Belgian Government to intervene in the
proceedings.
B. Compliance with Article 8: was the interference “in
accordance with the law” and did it pursue a legitimate aim?
142. It was common ground that the impugned interference was in accordance with the law for the purposes of Article 8, the relevant provisions being, in particular, Articles 330 and 333 of the Civil Code (see paragraphs 124-25 above) and section 2 of Law no. 184 of 1983 (see paragraph 126 above). It is true that the applicants alleged a failure to apply certain provisions of the latter statute, notably those concerning the provisional length of the placement (section 4(3)), the duty of directors of care institutions to facilitate links with the family of origin (section 5), and the refusal to give conside