CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 13 décembre 2007

.s800EAC49 { font-size:12pt } .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 } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   915 13.12.2007   Press release issued by the Registrar   CHAMBER JUDGMENT EMONET AND OTHERS v. SWITZERLAND   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Emonet and Others v. Switzerland (application no. 39051/03).   The Court held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 5,000   euros   (EUR) in respect of non-pecuniary damage and EUR   12,000 for costs and expenses. (The judgment is available only in French.)   1.     Principal facts   The case concerns an application brought by Isabelle Emonet, her mother Mariannick Faucherre and the latter’s partner Roland Emonet, three Swiss nationals who were born in 1971, 1946 and 1948 respectively and live in Geneva.   Mariannick Faucherre and her husband, Isabelle Emonet’s father, divorced in 1985. He died in 1994. Since 1986 Mariannick Faucherre has been living with Roland Emonet, who is divorced and has no children. The three applicants lived together between 1986 and 1992.   In March 2000, a serious illness left Isabelle Emonet paraplegic. She kept her own home, but needed to be cared for by her mother and Roland Emonet, whom she regards as her father. By agreement between the three applicants, it was therefore decided that Roland Emonet should adopt Isabelle Emonet so that they could become a real family in the eyes of the law.   In March 2001 the Court of Justice of the Canton of Geneva made the adoption order. However, the cantonal civil status authority informed Mariannick Faucherre that the adoption had the effect of terminating her parental tie with Isabelle Emonet; the latter would take on her adoptive father’s surname, as she was henceforth his daughter.   The first two applicants objected to the termination of the parental tie between them and requested that it be restored. The cantonal authority stood by its decision, referring to Article 267 of the Swiss Civil Code, according to which previously existing parental ties were severed on adoption, except in respect of the spouse of the adoptive parent; Mariannick Faucherre and Roland Emonet, however, were simply cohabiting. In September 2001 the President of the Geneva Department of Justice, Police and Transport formally rejected the request for restoration of the parental tie.   The applicants applied to the administrative courts seeking to have that decision quashed and instituted parallel proceedings to have the adoption order set aside. The administrative court initially allowed the application and ordered the cantonal civil status authority to restore the parental tie. However, on an appeal from the Federal Office of Justice, the Federal Court on 28 May 2003 found that the Swiss Civil Code ruled out the joint adoption of a child by cohabiting partners and the adoption by a cohabitant of his or her partner’s child. Accordingly, the Federal Court requested the cantonal civil status authority to enter the adoption in the civil status register.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 2 December 2003.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greek), President , Nina Vajić (Croatian), Anatoli Kovler (Russian), Khanlar Hajiyev (Azerbaijani), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), Giorgio Malinverni (Swiss), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants alleged that the effects of the adoption of Isabelle Emonet by Roland Emonet had breached their right to respect for their family life under Article 8 (right to respect for private and family life) of the European Convention on Human Rights.   Decision of the Court   Article 8   The Court considered that the severing of the parental tie between Isabelle Emonet and her mother, as a result of the adoption, represented an interference in the applicants’ right to respect for their family life, and found that that interference was provided for by the Swiss Civil Code.   The question before the Court was therefore whether that interference pursued a legitimate aim and was “necessary in a democratic society”.   With regard to the Swiss Government’s argument that the two older applicants could have avoided this loss of the parental tie by marrying each other, the Court considered that it was not for the national authorities to take the place of those concerned in reaching a decision as to the form of communal life they wished to adopt. It pointed out that the concept of “family” under Article 8 was not confined to marriage-based relationships and could encompass other “family” ties.   The Court noted that the 1967 European Convention on the Adoption of Children provided that the rights and obligations existing between adopted persons and their fathers or mothers should cease to exist on adoption. However, the Court noted that only 18 member States of the Council of Europe had ratified that Convention, and that there existed a draft revised Convention which provided that there could be no loss of the original parental ties in the event of adoption by the spouse or registered partner of the child’s parent. In the Court’s opinion, that indicated a growing recognition in the Council of Europe’s member States for adoptions such as that at the origin of the case.   Moreover, the Court considered that the applicants could not be reproached for having been unaware of the extent of the consequences arising from their request for adoption, which resulted in a severing of the parental tie between Isabelle Emonet and her mother.   In those circumstances, the Court considered that “respect” for the applicants’ family life would have required that both the biological and social realities were taken into account, in order to avoid application of legal provisions to the applicants’ very particular situation, which had clearly not been foreseen in the law. That failure to take the realities into account had flown in the face of the wishes of the individuals concerned, without actually benefiting anyone.   Accordingly, the Court concluded that there had been a violation of Article 8.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 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. [1] Under Article 43 of the Convention, 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.