CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 8 janvier 2009

.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 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .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 } EUROPEAN COURT OF HUMAN RIGHTS   006 8.1.2009   Press release issued by the Registrar   CHAMBER JUDGMENT NEULINGER AND SHURUK v. SWITZERLAND   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Neulinger and Shuruk v. Switzerland (application no. 41615/07). (The judgment is available only in French.)   The Court held, by four votes to three, that there had been no violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights concerning an order to return Ms Neulinger’s son to Israel.   1.     Principal facts   The applicants, Isabelle M. Neulinger and her son Noam Shuruk, are Swiss nationals who were born in 1959 and 2003 respectively and live in Lausanne (Switzerland, Canton of Vaud).   The case concerned the child’s return to Israel after being removed by his mother to set up home in Switzerland.   In 1999 Ms Neulinger, who is Jewish, settled in Israel where she married Shai Shuruk in 2001. Their son, Noam, was born in Tel Aviv in 2003.   Ms Neulinger, fearing that the child would be abducted by the father into a “Loubavitch-Habad” community, applied to the Tel Aviv Family Court, which in 2004 imposed a ban on leaving the country in respect of Noam until he attained his majority. The first applicant was granted interim custody of the child and parental responsibility was granted to both parents jointly. The father’s contact rights were subsequently restricted on account of his threatening behaviour.   On 10 February 2005 the parents divorced and on 24 June 2005 the first applicant secretly left Israel for Switzerland with her son.   In a decision of 30 May 2006, issued following an application by the child’s father, the Tel Aviv Family Court observed that the child was habitually resident in Tel Aviv and that the parents had joint parental responsibility for their son. The court held that the child’s removal from Israel without the father’s consent was wrongful within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980.   On 12 June 2006, following an extremely urgent application by the father, the Justice of the Peace of the Lausanne district ordered the first applicant to hand her and her son’s passports into the registry of the Justice of the Peace Court immediately.   In a decision of 29 August 2006, the father’s application for his son’s return to Israel was dismissed by the Justice of the Peace of the Lausanne district on the ground that there was a grave risk that the child’s return to Israel would expose him to physical or psychological harm or otherwise place him in an intolerable situation.   On 22 May 2007 the Vaud Cantonal Court, dismissing the father’s application, confirmed that this case was an exception to the principle of the child’s prompt return, in accordance with Article 13 first paragraph, letter b) of the Hague Convention.   On 16 August 2007 the Federal Court allowed an appeal by the father on the ground that that Article had been wrongly applied and ordered the first applicant to return the child to Israel.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 26 September 2007.   On 27 September 2007 the President of the Chamber decided to indicate to the Government not to return Noam Shuruk.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President , Anatoly Kovler (Russia), Elisabeth Steiner (Austria), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), judges , and also Søren Nielsen , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicants relied, in particular, on Article 8 of the Convention, submitting that the child’s return to Israel would constitute an unjustified interference, in a democratic society, with the exercise of their right to respect for family life.   Decision of the Court   Article 8   The Court held that the child’s removal to Switzerland was unlawful in so far as the father and mother had joint parental authority over him which included, under Israeli law, the right to determine the child’s residence. Furthermore, Noam’s removal abroad rendered the father’s contact rights illusory in practice as he lived in Israel. The Court also noted that Noam’s return, ordered by the Federal Court, amounted to an interference with the exercise of the right to respect for private and family life within the meaning of Article 8 of the European Convention. It found that the interference was based on the provisions of the Hague Convention, with the aim of protecting the rights and freedoms of Noam and his father.   Even though the applicants argued that the father’s threatening and fanatical conduct constituted a danger for them should they return to Israel, the Court found that the Israeli authorities had demonstrated their determination to take action to protect the applicants through the order given to the parents to live separately, the ban on the father entering Noam’s school or the first applicant’s flat, the restrictions on his contact rights and the arrest warrant against him for failure to pay maintenance.   Ms Neulinger’s claim that she risked being imprisoned if she returned to Israel had not, in the Court’s view, been made out and the Court saw no reason to doubt the assurances given by the Israeli authorities, particularly on the basis of their past attitude towards the applicants.   Ms Neulinger did not refer to any other obstacles to her life in Israel, where she had decided to settle in 1999, and where she had a social network. She also worked for the multinational company currently employing her in Lausanne and could therefore reasonably return to Israel.   Consequently, the Court stated that whilst returning to Israel might be inconvenient it was in the child’s best interests because it allowed him to maintain regular contact with both parents. It did not agree with the applicants that the mother would be unable to influence her son’s religious upbringing, because she had joint parental authority with the father.   The Court therefore held that the Federal Court’s decision to order the child’s return had been based on relevant and sufficient grounds for the purposes of paragraph 2 of Article 8 of the European Convention, as construed in the light of Article 13, first paragraph, letter b) of the Hague Convention, and was proportionate to the legitimate aim sought to be achieved. As in the case of Maumousseau and Washington v. France of 2007,   the Court considered that a fair balance had been struck between the competing interests, and that the child’s best interests had been taken into account.   The Court did not find any failing on the part of Switzerland regarding the measures accompanying Noam’s return to Israel.   Consequently, the Court held that there had been no violation of Article 8.     Judges Kovler, Steiner and Spielmann expressed separate dissenting opinions, which are annexed to the judgment.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone: 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   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.