CEDH · PRESS;GENERAL;ENG — 22 juin 2004

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sC6AFA2B2 { margin-left:36pt; text-indent:-18pt; font-family:serif; list-style-position:inside } .s16800832 { width:5.78pt; font:7pt 'Times New Roman'; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS   309 22.6.2004   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF PINI AND BERTANI & MANERA AND ATRIPALDI v. ROMANIA   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Pini and Bertani & Manera and Atripaldi v. Romania (application nos. 78028/01 and 78030/01).   The Court held: by six votes to one that there had been no violation of Article 8 of the European Convention on Human Rights (right to respect for family life); by four votes to three, that there had been a violation of Article 6 § 1 of the Convention (right to a fair trial); unanimously that there had been no violation of Article 2 § 2 of Protocol No. 4 to the Convention (freedom of movement).   Under Article 41 of the Convention (just satisfaction), the Court made the following awards by five votes to two:     12,000 euros (EUR) to Mr Pini and Ms Bertani and EUR 10,000 to Mr Manera and Ms   Atripaldi for pecuniary and non-pecuniary damage; and     EUR 7,000 to Mr Pini and Ms Bertani and EUR 6,000 to Mr Manera and Ms   Atripaldi for costs and expenses.   (The judgment is available only in French.)   1.     Principal facts   The applicants are four Italian nationals. Carlo Pini and Annalisa Bertani were born in 1957 and 1952 respectively and live in Reggio Emilia (Italy). Salvatore Manera and Rosalba Atripaldi were born in 1951 and 1953 respectively and live in Mantua (Italy).   At the time the applications were lodged, the applicants had obtained orders for the adoption of two Romanian children, Florentina and Mariana. The children were born in 1991 and were nine years old when the adoption orders were made and in the care of the Poiana Soarelui Educational Centre in Braşov (“the CEPSB ”). The CEPSB is a private institution approved by the Braşov Child Protection Department. Its function is to provide a home for orphaned and abandoned children, to take care of them and provide them with an education.   Acting through the intermediary of an association, the applicants began proceedings to adopt Florentina and Mariana, who had been judicially declared to have been abandoned at the age of three and seven. The Braşov District Court made the adoption orders on 28 September 2000 and ordered the children’s birth certificates to be amended. An appeal against that decision by the Romanian Adoptions Board was dismissed and the orders became final.   The applicants sought to enforce the adoption orders, but the CEPSB refused to deliver up the children’s birth certificates or to transfer custody of the children to them. On a number of occasions, court bailiffs accompanied by police officers and sometimes the applicants themselves attended the headquarters of the CEPSB in order to enforce the adoption orders. However, they were unsuccessful, as they were either refused access to the building or were unable to locate the children.   The CEPSB made various applications to Court to put a halt to the enforcement proceedings and unsuccessfully applied to have the adoption orders set aside. In September and November 2002 Florentina and Mariana issued proceedings to have the adoption orders revoked on the ground that they did not know their adoptive parents and did not wish to leave Romania and the CEPSB . The action brought by Florentina was dismissed, inter alia , on the ground that it was not in her interests for the adoption order to be revoked. However, the Braşov District Court granted Mariana’s application and revoked the adoption order after noting that she was receiving a sound education and living in good conditions at the CEPSB and had not formed any emotional ties with her adoptive parents.   Articles in the local Braşov press echoed statements made by Baroness Nicholson of Winterbourne, a rapporteur at the European Parliament, that children in the care of the CEPSB should not travel abroad to join their adoptive families. They also noted that the CEPSB ’s founder, the former tennis player Ioan Tiriac, had said that none of the children at the centre would leave as they had all become members of his family and that it was time to put a halt to the export of Romanian children.   2.     Procedure and composition of the Court   Mr Pini’s and Ms Bertani’s application was lodged on 10 March 2001 and Mr Manera’s and Ms   Atripaldi’s on 20 April 2001. On 25 June 2002 the Chamber decided that the applications should be given priority (Rule 41 of the Rules of Court) and on 16 September 2003 made an order for them to be joined.   On 2nd October 2002 and 7 October 2003 the President gave leave to third parties to intervene in the written and oral proceedings (Article 36 § 2 of the Convention and Rule 44 §   2). These were the CEPSB , Baroness Nicholson of Winterbourne (a British national and European Member of Parliament), Mr I. Tiriac (a founder member of the CEPSB), and Mr   V.   Arhire of the Bucharest Bar as the children’s representative.   Following a hearing in public at the Human Rights Building in Strasbourg on 25 November 2003, the applications were declared partly admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , András Baka (Hungarian), Loukis Loucaides (Cypriot), Corneliu Bîrsan (Romanian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Wilhelmina Thomassen (Netherlands), judges , and also Lawrence Early , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Article 8 of the Convention, the applicants complained that the Romanian authorities’ failure to enforce final judicial decisions had deprived them of all contact with their adopted children. They further submitted that the authorities’ refusal to permit their daughters to leave the country breached Article 2 § 2 of Protocol No. 4 to the Convention.   Decision of the Court   Article 8 of the Convention   The Court reiterated that although the right to adopt was not guaranteed by the Convention as such, the relationship between an adoptive parent and the child was in principle of the same nature as the relationship within a family that was protected by Article 8 of the Convention. In the light of the circumstances of the case, the Court found that the relationship between the adoptive parents and their adopted daughters, under lawful adoptions that were not shams, could be considered sufficient to warrant the respect required by Article 8 of the Convention, which accordingly was applicable.   As to whether the Romanian authorities had taken the necessary measures to enable the applicants to establish family relations with each adopted child, the Court noted that there was a conflict of interest between those concerned.   It was clearly apparent to the Court that Florentina and Mariana now preferred to remain in the socio-family environment in which they had been raised at the CEPSB , where they considered themselves to be fully integrated and which was able to afford them physical, emotional, educational and social development rather than the prospect of being transferred to a different environment abroad. Their interest lay in not having imposed upon them against their will new emotional relations with people with whom they had no biological ties and whom they perceived as strangers.   The applicants’ interest lay in their desire to create a new family relationship by creating a relationship with their adopted daughters. However legitimate that might be, the applicants’ desire could not enjoy absolute protection. When deciding whether national authorities had taken all measures that could be reasonably demanded of them to ensure that a child was reunited with its parents, particular importance had to be given to the best interests of the child. In adoption cases, it was even more important to give the child’s interests precedence over those of its parents, as adoption meant “giving a family to a child and not the child to a family”.   The Court deplored the manner in which the adoption proceedings had taken place, in particular the lack of concrete and effective contact between the applicants and the children before the adoption. These shortcomings had been made possible by gaps in the relevant domestic legislation at the material time. It was particularly regrettable that the children had clearly not received psychological support, which could have prepared them for their imminent departure from the centre that had been their home for several years and in which they had established social and emotional ties. Such measures would probably have enabled the applicants’ interests to converge with those of the children, instead of competing with them as had happened in the case before the Court.   Regard being had to the circumstances of the case, the applicants’ weaker interest could not justify imposing on the Romanian authorities an absolute obligation to ensure that the children went to Italy against their will and to ignore the fact that challenges to the adoption orders were pending. The children’s interest meant that their opinions had to be taken into account once they had the necessary maturity to express them, which Romanian law deemed them to possess at the age of 10. In that respect, the refusal they had consistently manifested since that age carried a certain weight. The conscious opposition of the children to the adoption would make their harmonious integration in their new adoptive family unlikely.   Consequently, the Court found that the Romanian authorities could legitimately and reasonably have considered that the applicants’ right to create ties with the adopted children could not take priority over the children’s interest, notwithstanding the applicants’ legitimate aspirations to found a family.   Article 6 § 1 of the Convention   The Court considered that the applicants’ complaints of a failure to enforce final decisions should be examined under Article 6 § 1.   The sole cause of the failure to execute the adoption orders had been the actions of the CEPSB staff and its founder members. They had consistently opposed the children’s departure by making various applications to prevent execution and preventing the court bailiffs from carrying out their task effectively. There had even been an occasion on which a bailiff, the applicants and the applicants’ lawyer had been kidnapped at the centre when attempting to execute the adoption orders.   In that connection, the Court considered that people who chose to resort to such tactics against those whose task it was to enforce a court judgment had to be held accountable. In the case before it, the kidnapping had occurred as a direct result of the lack of police assistance and nothing had been done about it since. No measures had been taken to penalise the CEPSB for its lack of cooperation with the authorities and no action had been taken against the director of the CEPSB in respect of his refusal, for almost three years, to cooperate with the court bailiffs.   By failing, for more than three years, to take effective measures to comply with final and enforceable judicial decisions, the Romanian authorities could be held accountable for the actions of a private institution that had rendered the provisions of Article 6 § 1 of the Convention nugatory. Such a conclusion was made all more necessary by the undoubtedly irreversible consequences which the passage of time had had on the potential relationship between the applicants and their respective adoptive daughters. On that subject, the Court noted with regret that, though they had not totally disappeared, the prospects of that relationship flourishing now appeared remote, given that the children, now aged 13, had recently indicated that they were strongly opposed to being adopted and going to live in Italy.   Article 2 § 2 of of Protocol No. 4 to the Convention   The Court found no appearance of a violation of this right: Florentina and Mariana were free to move as they wished both inside and outside Romania. Moreover, as those primarily concerned, they themselves denied that there had been any interference with their freedom of movement.     Judge Costa expressed a concurring opinion, Judges Loucaides and Bîrsan each expressed a partly dissenting opinion and Judge Thomassen, joined by Judge Jungwiert, expressed a dissenting opinion. These opinions are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.