Resolution CM/ResDH(2011)303[1]
Execution of the judgment of the European Court of Human Rights
Carlson against Switzerland
(Application No. 49492/06, judgment of 6 November 2008, final on 6 February 2009)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the applicant’s right to respect for his family life (violation of Article 8) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix);
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2011)303
Information about the measures to comply with the judgment in the case of
Carlson against Switzerland
Introductory case summary
This case concerns a breach of the applicant’s right to respect for his family life (violation of Article 8).
The applicant, a United States national, is the father of a child born in 2004 of his marriage to a Swiss national. In the summer of 2005, the wife, who had been living with her husband and child in the United States, decided to take up residence in Switzerland. Shortly thereafter, two suits were brought before the Swiss Courts: in September 2005 the applicant’s wife sued for divorce and provisional custody of the child, which was granted by the Swiss court on 30/09/2005. In October 2005, the applicant requested the child’s immediate return to the United States by virtue of the Hague Convention (of 25/10/1980 on the civil aspects of the international abduction of children). The Swiss judge joined the two proceedings, and dismissed the applicant’s request in mid-February 2006. This decision was ultimately upheld by the Federal Court on 13/07/2006.
The European Court considered that the applicant’s rights under Article 8 were violated for three reasons, essentially linked to slowness in implementing the possible repatriation of the child:
-Article 16 of the Hague Convention requires the suspension of proceedings on the merits of custody until a decision has been taken on possible repatriation. Here, the decision to join the proceedings was contrary to the terms of the Hague Convention and had the effect of prolonging the proceedings with regard to repatriation of the abducted child;
-Article 11 of the Hague Convention requires the competent authorities to proceed with urgency with a view to the child’s return; more than six weeks’ inactivity could give rise to a request for explanation. In this case, the three and a half months between application and decision were excessive;
-Article 13 of the Hague Convention provides that return of the child is not imperative where the person opposing return (in this case the mother) can prove that the person having charge of the child (in this case the father) had consented to the child’s being removed or not returned. The Swiss judge reversed the burden of proof, imposing on the applicant rather than on the mother the responsibility for establishing that he had not consented to the child’s being removed or not returned, which placed him in a clearly disadvantageous position from the start.
In conclusion, the European Court was not convinced that the Swiss courts, when evaluating the application for the child’s return under the Hague Convention, had taken due account of the overriding interest of the child (understood in the sense of a rapid decision to reintegrate him in the usual context of his life).
I.Payment of just satisfaction and individual measures
(a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
10 000 EUR
12 000 EUR
22 000 EUR
Paid on 01/04/2009
(b) Individual measures
The European Court awarded just satisfaction in respect of non-pecuniary damage sustained by the applicant, in particular as the shortcomings identified in the implementation of the Hague Convention brought about a break in relations between the applicant and his son. Nonetheless, the Court pointed out (§70) that the applicant did not complain about the reasons for the refusal of his application for the child’s return, but rather of the way the national courts responded to his application (i.e. the unfolding and the length of the proceedings).
The Swiss authorities underlined that although the applicant had the possibility to submit a request for revision with the Federal Court following the judgment of the European Court, he did not avail himself of this opportunity.
When the Court’s judgment was rendered, the divorce proceedings in Switzerland were still pending. The Swiss authorities informed the Committee that on 25/01/2010, the Baden district court granted the applicant monthly visiting rights for two days, accompanied by a tutor (“Beistand des Kindes”) to be appointed by the Zurich guardianship authority (Vormundschaftsbehörde). This measure ordered by the district court enables the re-establishment of relations between the applicant and his child.
In view of the situation, and taking into account that the applicant has, if he so wishes, access to his child and to the courts in Switzerland in order to protect his and his child’s interests under the Convention, no further individual measure was deemed necessary by the Committee of Ministers.
II.General measures
Measures were taken to shorten and simplify proceedings in such cases. As already described in the context of the case of Bianchi (Final Resolution CM/Res/DH(2008)58), a new federal law on the international abduction of children entered into force on 01/07/2009. This law provides: accelerating return procedures by conferring competence on a single cantonal court and removing other legal procedures at cantonal level; giving preference to the conclusion of friendly settlements in disputes between parents; combining decisions on return with enforceable measures; and requiring cantons to designate a single authority in charge of enforcement. The law also provides that the parties should whenever possible be heard by the court and that children should be heard in an appropriate manner. Lastly, the court is required, to the extent this is necessary, to work with the competent authorities of the state in which the child habitually resided immediately before being abducted.
Further, also on 01/07/2009, the Hague Convention of 19/10/1996 on competence, applicable law, recognition, enforcement and co-operation regarding parental authority and child protection measures entered into force in respect of Switzerland. These new international rules aim in particular to avoid conflicts of competence between states and the adoption of contradictory decisions. Pursuant to this Convention, the Federal Justice Department was designated as the central authority at federal level.
Lastly, the authorities underlined that given the direct effect enjoyed by the European Convention and the case-law of the European Court in Swiss law, the competent authorities are expected to align their practice to the Convention’s requirements under Article 8 as they result from this judgment so as to provide effective assistance to persons in the applicant’s position. For this purpose, the judgment was published in the three official languages (French, German and Italian) in the quarterly Report on the jurisprudence of the ECHR 4/2008 and sent out to all authorities concerned.
III.Conclusions of the respondent state
The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers by tacit procedure in accordance with the decision taken at the 1128th meeting (December 2011) under item F.
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