Gil and AUI v Spain
| Judge | SIR NICHOLAS BRATZA (PRESIDENT),JUDGES PELLONPAA,RIDRUEJO,PALM,FISCHBACH,CASADEVALL,PAVLOVSCHI,MR M O’BOYLE (SECTION REGISTRAR) |
| Judgment Date | 29 July 2003 |
Human rights – Private and family life – Child abduction – Wrongful removal of child from jurisdiction – Whether state had obligation to secure the return of child – European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
In 1994, the mother and father divorced. In 1995, the son was born. The father acknowledged paternity. The court granted the mother custody of the son and granted the father access. In 1997, the father, during an access visit, abducted the son and left Spain. He travelled with the child to the United States, via France and Belgium. The mother lodged a criminal complaint against the father alleging child abduction. At the time of the abduction, in Spanish law, a person could not be prosecuted for child abduction if he had joint parental responsibility, which the father did. Such a person could, however, be prosecuted for criminal contempt and extortion. A nationwide search for the child was ordered, and orders were also made for the child’s immediate return to the mother and the freezing of the father’s assets. Requests by the mother for further investigation of the father was refused by the judge. The judge also declined to issue an arrest warrant against the father. The judge issued a provisional discharge order dismissing the charges against the father due to his absence from the country. The mother’s appeals were dismissed. When the father returned to Spain with the child, the mother recovered her son from him, with police assistance.
Held – In the instant case, once the Spanish judicial authorities had established that the child had been wrongfully removed, the relevant national authorities should have taken appropriate measures as set out in the Hague Convention on the Civil Aspects of International Child Abduction 1980 to secure his return to the mother. They had not taken and Convention measures to facilitate the enforcement of the court orders in favour of the mother and the child. However, the refusal of the mother’s request for certain investigation methods were reasoned, not arbitrary. Whilst it was primarily for the national courts to interpret and apply domestic law, in the instant case the problem related not only to the courts interpretation of the legislation, but also to the inadequacy of the legislation itself, which had since been amended. The Spanish legislature found it necessary to reinforce the provisions designed to combat child abduction, particularly regarding the criminal law. Having regard to the above, and notwithstanding the state’s
margin of appreciation, the Spanish authorities had failed to make adequate and effective efforts to enforce the first applicant’s right to the return of her child and to the child’s right to be reunited with his mother and thereby breached their right to respect for family life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
Cases referred to in judgmentAl-Adsani v UK (2001) 12 BHRC 88, ECt HR.
Hokkanen v Finland[1995] 2 FCR 320, [1996] 1 FLR 289, ECt HR.
Ignaccolo-Zenide v Romania [2000] ECHR 31679/96, ECt HR.
Keegan v Ireland (1994) 18 EHRR 342, [1994] ECHR 16969/90, ECt HR.
Nuutinen v Finland [2000] ECHR 32842/96, ECt HR.
Streletz, Kessler and Krenz v Germany [2001] ECHR 34044/96, ECt HR.
Winterwerp v Netherlands (1979) 2 EHRR 387, [1979] ECHR 6301/73, ECt HR.
ApplicationThe first applicant, acting in her own name and in her capacity as the legal representative of her son (the second applicant), complained under art 8 of the Convention of a lack of diligence on the part of the judicial authorities in dealing with her complaint of child abduction. The facts are set out in the judgment of the court.
PROCEDURE1. The case originated in an application (no 56673/00) against the Kingdom of Spain lodged with the court under art 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) by two Spanish nationals, Mrs María Iglesias Gil and AUI (the applicants), on 22 December 1999.
2. The applicants were represented before the court by Mr J Thomas Mulet, of the Palma de Mallorca Bar. The Spanish government (the government) were represented by their agent, Mr J Borrego Borrego, head of the legal department for human rights at the Ministry of Justice.
3. The first applicant, acting in her own name and in her capacity as the legal representative of her son (the second applicant), complained under art 8 of the Convention of a lack of diligence on the part of the judicial authorities in dealing with her complaint of child abduction. She alleged, in particular, that the public prosecutor, who was under a legal duty to protect minors, had at no stage acted in the child’s interest or requested any investigative steps to be taken. The various judicial authorities to which the case was referred (the investigating judge, the Pontevedra Audiencia Provincial and the Constitutional Court) had likewise displayed a lack of interest.
4. The application was allocated to the Fourth Section of the Court (r 52(1) of the Rules of Court). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1).
5. On 1 November 2001 the court changed the composition of its sections (r 25(1)). This case was assigned to the newly composed Fourth Section.
6. By a decision of 5 March 2002 the chamber declared the application admissible.
7. The applicants and the government each filed observations on the merits (r 59(1)).
8. A hearing took place in public in the Human Rights Building, Strasbourg, on 10 December 2002 (r 59(3)).
There appeared before the court: (a) for the government Mr J Borrego Borrego, head of the legal department for human rights, Ministry of Justice, agent; (b) for the applicants Mr J Thomas Mulet, of the Palma de Mallorca Bar, counsel. The court heard addresses by the above-mentioned representatives.
THE FACTS I. The circumstances of the case9. The first applicant, María Iglesias Gil, was born in 1961 and lives in Vigo. She is the mother of the second applicant, AUI, who was born in 1995.
10. On 8 September 1989 the first applicant married AUA. On 3 June 1994 the couple divorced. Their son AUI was born on 7 December 1995 and AUA acknowledged paternity. In a decision of 20 December 1996, the Vigo Family Court awarded the first applicant custody of AUI, and the father access. On 1 February 1997 AUA abducted his son during an access visit and left Spain with him. After passing through France and Belgium, he travelled with the child by air to the United States.
A. Domestic court proceedings
1. The first applicant’s criminal complaint of unlawful abduction
11. The first applicant lodged a criminal complaint with Vigo investigating judge no 5 alleging child abduction and applied to be joined to the proceedings as a civil party. On 4 February 1997 the investigating judge made orders for a nationwide search to be made for AUA and for the child’s immediate return to its mother. Subsequently, the first applicant also made criminal complaints against various members of AUA’s family who, she said, had assisted in her son’s abduction.
12. During the investigation, the first applicant requested Vigo investigating judge no 5 to monitor calls on AUA’s mobile telephone and to interview members of AUA’s family. In a decision of 19 February 1997, the investigating judge turned down both requests, the former on the ground that there was no evidence that the mobile telephone number that had been given was AUA’s and the latter because the first applicant had not given precise details of the questions she wished to be put to her former husband’s relatives. The first applicant also asked the investigating judge for a search to be carried out at the registered office of a company belonging to AUA that
was responsible for administering his property in his absence, and for the examination of a vehicle he had used to leave Spain. The judge again refused.
13. The first applicant asked the judge to issue an international search and arrest warrant against AUA, but in an order of 29 May 1997, he declined, stating:
‘2. As regards the international search and arrest warrant, the offences of coercion and extortion have not been made out. It is debatable whether there has been an offence of criminal contempt, since it has not been proved that the person concerned was ordered to comply with the judgment of the family court and warned that he was liable to commit this offence. In addition, since this offence (Article 556 of the Criminal Code) only carries a prison sentence of between six months and one year, an international search and arrest warrant is not justified, [especially] as the conduct complained of appears to come within Article 622 of the Criminal Code, which characterises it as a minor offence º
4. Furthermore, it should be noted that the requested procedural steps are neither lawful, nor adapted to the aim pursued, and must therefore be refused pursuant to Article 311 of the Code of Criminal Procedure.’
14. In a decision of 5 June 1997, investigating judge no 5 turned down further requests by the first applicant for investigative steps to be taken as a result of her former husband’s contempt and failure to comply with the judgment of the family court on the following grounds:
‘2. Investigative steps are taken in order to establish whether an offence has been committed. The investigation is brought to an end by a judicial decision, not at the request of a party (Article 785 Code of Criminal Procedure).
3. The inquiries made to date do not prove that A.U.A. failed to return his son to his mother at the end of the period for which he was entitled to have him to stay º
6. A wanted notice has been issued for A.U.A. nationally. As soon as he has been traced, final provision 19 of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors can be applied.’
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