Bove vs. Italia

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Publication: [not yet received] Title: Bove v. Italy Application No: 30595/02 Respondent: Italy Referred by: Date of reference by Commission: Date of reference by State: Date of Judgment: 30-06-2005 Articles: 8 13 14 41 Conclusion: Violation of article 8 Not necessary to examine article 13 Not necessary to examine article 14 Compensation awarded for costs and expenses Keywords: RESPECT FOR FAMILY LIFE / EFFECTIVE REMEDY / DISCRIMINATION

Summary: (Press release) The applicant, Luigi Bove, is an Italian national who was born in 1965 and lives in Naples (Italy). The applicant has a daughter, C., who was born in 1995. Since the child's mother prevented the applicant from seeing her, he instituted proceedings for the determination of access arrangements. In September 1996 the Naples Juvenile Court gave the mother custody of the child and authorised the applicant to see her two afternoons a week and every other Sunday. Further to a declaration by the child's mother that the applicant's father and two of the applicant's friends had sexually assaulted the child, the court made a temporary emergency order on 22 June 2000 limiting the contact between the applicant and his daughter to two weekly meetings on the social services' premises in the presence of a social worker. In January 2001 his access rights were further limited to one afternoon a week.

In April 2001 the criminal proceedings against the applicant's friends were discontinued. The applicant twice applied for an order depriving the child's mother of parental responsibility and giving him custody of the child or the possibility of free access to her. In the first set of proceedings the Court of Appeal on 30 January 2003 arranged for the gradual resumption of contact between the applicant and his daughter, but the child refused to see him. In the second set the Court of Appeal ordered a psychologist to make a final attempt to arrange meetings between the father and daughter, but the child again refused. In spite of those decisions, the applicant was not given the opportunity to see his daughter. Their last meeting took place in September 2002 under supervision, with the child's mother also present.

Relying on Article 8 (right to respect for family life), the applicant complained of the refusal by the Naples Juvenile Court to grant him custody of his daughter, and of the difficulties encountered in exercising his access rights. He also alleged a violation of Articles 13 (right to an effective remedy) and 14 (prohibition of discrimination) taken together with Article 8 of the Convention.

The Court noted that, after its decision of 22 June 2000, the Naples Juvenile Court had not intervened to ensure that the supervised meetings could take place as planned. Although the criminal proceedings against the applicant's two friends had been discontinued and his father had died in January 2003, contact between the applicant and his daughter had not resumed. On 30 January 2003 the Naples Court of Appeal had authorised the gradual resumption of contact but its decision had not been enforced.

The applicant had not seen his daughter since September 2002 and the authorities had not set a schedule for any further meetings. The difficulties in arranging visits were, admittedly, partly attributable to the animosity between C.'s mother and to the child's reluctance to meet her father. However, the Court did not accept that the applicant could be held responsible for the ineffectiveness of the relevant decisions or measures in actually bringing about contact. The inaction of the authorities had forced the applicant to have constant recourse to a succession of time-consuming and ultimately ineffectual remedies to enforce his rights.

In conclusion, the Court considered that the failure to enforce the applicant's access rights since September 2002 had infringed his right to respect for his family life. It accordingly held by six votes to one that there had been a violation of Article 8 of the Convention as regards that part of the complaint.

As to the Italian authorities' refusal to grant the applicant custody of his daughter, the Court considered that their decisions had been taken in the child's interests and had been based on relevant reasons. It therefore held that there had been no violation of Article 8 as regards the refusal to give the applicant custody of the child.

The Court found it unnecessary to examine the complaints under Articles 13 and 14 as no separate issue arose under those provisions. It considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant and awarded him EUR 3,000 for costs and expenses. (The judgment is available only in French.)

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