Published on 22 July 2024
FIRST SECTION
Application no. 9993/24
A.C.M.U. and Others
against Italy
lodged on 5 April 2024
communicated on 3 July 2024
SUBJECT MATTER OF THE CASE
The applicants are A.C.M.U. (the first applicant), and her underage children, A.P. and M.P, the second and third applicants. All three applicants are French citizens.
On 16 April 2021, the first applicant filed a complaint against G.P., her partner and father of the minors (an Italian citizen), for physical violence, ill‑treatment, and sexual violence, specifying that the physical violence had also been committed against the children. She then filed other subsequent complaints for other violent behaviours of G.P.
In May 2021, all three applicants were placed in a foster home. Right after, the first applicant asked the Naples Juvenile Court for sole custody of the minors and the withdrawal of parental responsibility from G.P., and for authorisation to move with them to France. She also requested that the amount due as maintenance be fixed. On 21 June 2022, the Naples Juvenile Court suspended G.P.’s parental responsibility and all his meetings with the children. In June 2023, the first applicant urgently submitted a new request for authorisation to move to France. The Juvenile Court appointed a guardian for minors who requested the withdrawal of parental responsibility from G.P. and gave a favourable opinion on the removal of the applicants from the foster home and their relocation to France. On 10 May 2024, the Naples Juvenile Court settled the proceedings and, while withdrawing parental responsibility from G.P., acknowledged that the parental responsibility remained “concentrated” on the mother. No decision was taken as regards the further requests (sole custody of the minors, maintenance, removal from the foster home and relocation to France). According to the information submitted by the Italian Government on 2 May 2024 and by the applicants on 27 May 2024, the applicants were still living in the foster home; however, the fact that the first applicant is the sole parent with parental responsibility allows her, at least formally, to take all the decisions in favour of the children.
As regards the criminal proceedings against G.P., in November 2021, the Public Prosecutor asked for the case to be dismissed. Following the first applicant’s objection, further investigations were carried out and the indictment was ordered on 12 February 2024. The first hearing of the trial has been set for 17 September 2024.
With reference to Article 8 of the Convention, the applicants complain of the allegedly disproportionate interference with their private and family life, on account of the failure to take decisions on the children’s custody and to authorise the applicants to move to France. They also complain of a disproportionate interference in relation to their forced stay in the foster home for 3 years.
The applicants also rely on Article 3 of the Convention in relation to the failure to assess the specifics of a domestic violence’s case, the lack of restrictive measures against G.P. and the duration of the criminal proceedings, incompatible with the State’s positive obligations in a domestic violence case.
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QUESTIONS TO THE PARTIES
1. Have the State authorities complied with their positive obligations enshrined in Articles 3 and 8 of the Convention to protect the applicants from the domestic violence (see De Giorgi v. Italy, no. 23735/19, §§ 67-70, 16 June 2022, and, mutatis mutandis, Kurt v. Austria [GC], no. 62903/15, § 190, 15 June 2021 and Opuz v. Turkey, no. 33401/02, §§ 158-176, ECHR 2009), in particular by ensuring that the applicants received adequate measures of protection?
2. Having regard to the State’s procedural obligation (Luca v. the Republic of Moldova, no. 55351/17, § 75, 17 October 2023, M.S. v. Italy, no. 32715/19, §§ 134-139, 7 July 2022, and, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, §§ 151-153, ECHR 2003-XII) has the investigation in the present case by the domestic authorities been in breach of Articles 3 and 8 of the Convention?
Considering in particular the so-called “red code” provisions (“codice rosso”, law no. 69 of 2019), have the authorities assessed and taken into account the specificities of a domestic violence case (De Giorgi, cited above § 81)?
In particular:
a) Has the Public Prosecutor correctly assessed the allegations of domestic violence (J.L. v. Italy, no. 5671/16, §§ 118-122, 134,139-141, 27 May 2021)?
b) Have the investigations been timely, proactive and effective (Talpis v. Italy, no. 41237/14, §§ 104-106 2 March 2017;)?
3. Has there been a violation of the applicants’ right to respect of their private and family life, having regard to the State’s positive obligation under Article 8 of the Convention?
In particular, having regard to the proceedings before the Juvenile Court and the measure requested by the applicants:
a) Has the Juvenile Court adopted its decisions with due regard to the children’s best interests (Strand Lobben and Others v. Norway [GC], no. 37283/13, § 207, 10 September 2019)? Have the decisions been taken in a timely manner, taking due account of the requests made by the first applicant for the sole custody of second and third applicants and of the numerous reports submitted by the court-appointed experts (mutatis mutandis, I.M. and Others v. Italy, no. 25426/20, §§ 113-114,10 November 2022)?
b) Considering the reports of the social services and of the other experts, concerning the repercussions of the stay in the foster home on the second and third applicants, is their placement in the foster home since May 2021 justified on specific grounds (mutatis mutandis, I.M. and Others v. Italy, cited above, § 122)?
APPENDIX (anonymity has been granted)
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
A.C.M.U.
1983
French
Pellezzano
2.
A. P
2011
French
Pellezzano
3.
M. P.
2014
French
Pellezzano