Buscemi v. Italy

Information Note on the Court’s case-law 10

September 1999

Buscemi v. Italy - 29569/95

Judgment 16.9.1999 [Section II]

Article 8

Article 8-1

Respect for family life

Court refusing several times to grant custody of a child to her father: violation

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Presiding judge in child custody proceedings having been publicly engaged in a controversy with the father: violation

Facts: On the applicant’s separation from his girlfriend, Turin Youth Court awarded custody of their daughter to the mother. The mother subsequently gave the child to the father, who applied to the court for legal custody of the child to be transferred to him. On 5 May 1994 the court decided to place the child in a children’s home with access for the mother once a week and for the father once a month. The court also appointed two experts, one a psychologist and the other a neuro-psychiatrist, in order to determine which parent should be awarded custody of the child. One of the experts carried on a secondary activity as a street trader. The applicant appealed against the decision to place the child in a children’s home. The Court of Appeal dismissed his appeal, but allowed the father to commission two expert reports of his own. However, according to the applicant, the experts appointed by him were kept on the fringes of the investigation process, even if one of them was able to take part in a meeting to assess the material gathered. The official expert report concluded that neither parent was fit to give the child a sufficiently well-balanced upbringing. The unofficial report, which was published a few days later, criticised the conclusions of the official report with regard to the applicant. The applicant brought a further application, in which he contested the conclusions of the official expert report and the manner in which the experts’ investigation had been conducted and again requested custody of his child. On 3 November 1994 the court upheld the decision to place the child in a children’s home. The decision also envisaged the return – in the long term – of the child to her mother. The applicant’s monthly right of access was maintained, albeit under strict supervision. As between 11 July and 5 September 1994 the applicant had been involved in a heated dispute in the press with the President of the Youth Court over the social role played by those courts, he requested on 21 November 1994 that the President withdraw from the case. The Youth Court dismissed that request as out of time since the decision relating to custody of the child had already been given when the request for the President to withdraw was filed. Some time later, following a road accident in which the child was involved, the applicant, who is a doctor, tried to make contact with her, but was reminded of the terms of his access rights by a decision of the President of the court. The applicant appealed – unsuccessfully – against the judgment of 3 November 1994. He also requested the Youth Court to review its ruling on access rights and to award custody of the child to her mother. His application was dismissed, whereupon he appealed. Both appeals were dismissed by the Court of Appeal on 14 February 1995 on the ground that the first had been lodged out of time and the second was premature, since the decision to place the child in a children’s home was provisional. The applicant applied to the Court of Appeal once again, on 22 June 1995, for custody of the child to be awarded to him or to her maternal grandmother. The court dismissed his application on the ground, inter alia, that the child had become more stable since she had been placed in the children’s home and had expressed a wish to return to her mother. On 9 August 1995 the Youth Court re-awarded custody to the mother and awarded the applicant strictly supervised monthly access. Some of the conditions attached to the access were subsequently lifted by a decision of the court. The applicant, who considered those improvements to be inadequate, lodged an appeal against that decision. The Court of Appeal dismissed his appeal on the ground that the child had become psychologically less stable. The criminal complaints filed by the applicant against the experts who had written the report resulting in the child being placed in a children’s home were unsuccessful. Lastly, an investigation of the complaint which he had brought against the President of the court on account of the latter’s comments in the press concluded that there had been no injury to the applicant’s reputation or honour. A complaint to the Supreme Council of the Judiciary received no response. The applicant complains of an extremely serious violation of respect for his family life as a result of an expert report which, he submits, was procedurally flawed. He also alleges that the statements made to the press by the President of Youth Court caused injury to his reputation and to his family life. Lastly, he submits that the issue of custody of his daughter should not have been decided by a judge with whom he had publicly had a dispute.

Law: Article 8 – (i) Conduct of the experts’ investigation: the Court considered that the applicant had been able to play a sufficiently active role in the proceedings which had led to the authorities’ interference with his family life. The applicant’s criticism of the manner in which the experts’ investigation had been conducted was not a decisive factor, particularly as one of the experts appointed by him had been able to discuss with the court-appointed experts the results of the examinations made during the investigation. Furthermore, the expert report had not been the only factor taken into account by the courts in deciding the case.

(ii) The public statements by the President of the court: the statements made to the press by the President of the court did not in any way amount to an infringement of the applicant’s private or family life, since he had himself disclosed his identity in his first letter to the newspaper.

Conclusion: no violation (unanimous).

Article 6 § 1 – The Court pointed out that the duty of impartiality required the judicial authorities to maintain maximum discretion with regard to the cases with which they deal, even where they were provoked; it considered that the public statements by the President of the court had been such as to justify the applicant’s fears as to his impartiality.

Conclusion: violation (unanimous)

Article 41: The Court rejected the claims under the head of pecuniary damage on the ground that it did not have any evidence that such damage had been sustained. Regarding non-pecuniary damage, it considered that a finding of a violation amounted in itself to just satisfaction, particularly having regard to the fact that the applicant had contributed to fuelling the dispute in which he had been involved.

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This summary by the Registry does not bind the Court.

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