CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 10 juin 2010

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sBB9EE52A { font-family:Arial } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s7C768949 { font-family:Arial; text-decoration:underline; color:#0000ff } .sADADF4A7 { font-family:Arial; text-decoration:underline } .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 } .sB853CD26 { font-family:Arial; font-size:8pt }   474 15.06.2010   Press release issued by the Registrar   Chamber judgment [1]   Schwizgebel v. Switzerland ( application no. 25762/07)   REFUSAL TO AUTHORISE ADOPTION MAINLY ON ACCOUNT OF applicant’s AGE WAS NOT DISCRIMINATORY   No violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights     Principal facts   The applicant, Ariane Schwizgebel, is a Swiss national who was born in 1957 and lives in Geneva. She is single. In 1996 she filed her first application for authorisation to take in a child with a view to adoption (adoption by a single parent being possible under Swiss law) with the authorities of the Canton of Geneva. However, after being informed that she would probably receive an unfavourable response, she withdrew that application. She filed a new application in 1998 with the authorities of the Republic and Canton of the Jura, the area to which she had moved. She obtained the necessary authorisation from the social services and in 2000 took in a Vietnamese child, whom she adopted in June 2002.   From July 2002 onwards Ms Schwizgebel sought authorisation to take in a second child for adoption, this time a three-year-old from South America. The social services refused to grant authorisation and their refusal was upheld by the courts. After moving back to Geneva, the applicant twice requested authorisation from the authorities of that Canton in respect of a second child. Her applications were again rejected, in July 2004 and September 2005, and she was unsuccessful in appeals to the courts. In connection with the second of those applications, she appeared in person before the cantonal authority and stated that she wished to adopt a five-year-old child, if possible from Vietnam like her first child. In dismissing her appeal, on 24 April 2006, the Court of Justice of the Canton of Geneva did not call into question her child-raising capacities or her financial resources. It took the view, however, that the adoption of a second child could entail an unfair interference with the situation of the first and that the applicant had underestimated the difficulties of her new plan for international adoption. It further expressed reservations about her availability for another child. In the last instance, in a judgment of 5 December 2006, the Federal Court dismissed the applicant’s administrative appeal. It had regard in particular to what would be in the child’s best interests, together with Ms Schwizgebel’s age and her age-difference in relation to the child (between 46 and 48 years, which was regarded as excessive).     Complaints, procedure and composition of the Court   Ms Schwizgebel complained that the Swiss authorities had prevented her from adopting because of her age (47 and a half at the time of her last application). She claimed among other things that she had been discriminated against in comparison with other women of her age, who were able nowadays to give birth to children of their own. She relied in substance on Article   14, taken together with Article   8 of the Convention.   The application was lodged with the European Court of Human Rights on 15 June 2007.   Judgment was given by a Chamber of seven judges, composed as follows:   Christos Rozakis (Greece), President , Nina Vajić (Croatia), Khanlar Hajiyev (Azerbaijan), Dean Spielmann (Luxembourg), Sverre Erik Jebens (Norway), Giorgio Malinverni (Switzerland), George Nicolaou (Cyprus), Judges ,   and Søren Nielsen, Section Registrar ,     Decision of the Court   The Court first examined whether the applicant had been subjected to a difference of treatment by the Swiss authorities in relation to persons in a comparable situation. It found that this was not the case in relation to women who were able to give birth at that age (the State having no influence as regards the possibility for a woman to have genetically-related children or the contrary). It would be different, however, if her situation were compared with that of a younger unmarried woman, who, in the same circumstances, might succeed in obtaining authorisation to take in a second child for adoption. The applicant could therefore claim that she was a victim of a difference of treatment between persons in a comparable situation.   The Court then examined whether that difference of treatment had had an objective and reasonable justification. In the proceedings for the adoption of a second child, the authorities had in particular based their refusal on Ms Schwizgebel’s age-difference with the child to be adopted (between 46 and 48 years), which was regarded as excessive and contrary to the child’s interests. The Court sought to ascertain whether, in this area, there was a common denominator among the legal systems of the member States of the Council of Europe. It concluded that this was not so: a single person’s right to adopt was not guaranteed in all States – in any event, not absolutely – and as regards the age of the adopter or the age-difference between the adopter and the child, the solutions differed considerably from one State to another. The Court thus took the view that, in the absence of any consensus, the Swiss authorities had considerable discretion to decide on such matters, and that both the domestic legislation and the decisions taken in the present case seemed to be consonant with the solutions adopted by the majority of the member States of the Council of Europe and, moreover, to be compliant with the applicable international law. Nor could any arbitrariness be detected in the present case: the authorities had taken their decisions in the context of adversarial proceedings allowing Ms Schwizgebel to submit her arguments, which had been duly taken into account by those authorities. Their decisions, containing ample reasoning, had been based in particular on the comprehensive enquiries by the cantonal authorities. They had considered not only the best interests of the child to be adopted, but also those of the child already adopted. Moreover, the Court emphasised that the criterion of the age-difference between the adopter and the child had been applied by the Federal Court flexibly and having regard to the circumstances of the situation. Lastly, the other arguments given in support of the decisions, i.e. those not based on age, had not been unreasonable or arbitrary.   In those circumstances, the difference of treatment imposed on Ms Schwizgebel had not been discriminatory. There had not therefore been a violation of Article 14 taken together with Article 8.   ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts [email protected] / +33 3 90 21 42 08 Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   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.