Resolution CM/ResDH(2015)186
Execution of the judgment of the European Court of Human Rights
Neulinger and Shuruk against Switzerland
Application
Case
Judgment of
Final on
41615/07
NEULINGER AND SHURUK
06/07/2010
Grand Chamber
(Adopted by the Committee of Ministers on 4 November 2015
at the 1239th meeting of the Ministers’ Deputies)
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 final judgment transmitted by the Court to the Committee in this case and to the violation established;
Recalling the respondent State’s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:
- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;
Having examined information provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see details in Appendix);
Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,
DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination thereof.
Appendix to Resolution CM/ResDH(2015)186
Information about the measures to comply with the judgment in the case of Neulinger and Shuruk against Switzerland
Introductory case summary
This case concerns the violation of the applicants’ right to respect for family life on account of the order issued by the Federal Court in August 2007 to return the minor child (the second applicant, born in 2003) to his father’s country of residence (Israel) from which the child had been wrongly removed in 2005 by his mother (the first applicant).
The European Court considered that the child’s best interests had to be the primary consideration in the required balance between the competing interests at stake and found that it might undermine the relevance in this matter of the Hague Convention on the Civil Aspects of International Child Abduction if such a return order were enforced a certain time after the child’s abduction. The European Court concluded by finding a violation of Article 8 if the applicants were to be forcefully returned to Israel, in view of the particular circumstances and developments in the situation of the individuals concerned since the child’s removal from Israel (the specific situation of the father in Israel, the mother possibly facing imprisonment upon return to Israel, and the child’s good integration into his new environment in Switzerland).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
-
15 000 EUR
15 000 EUR
Paid on 12/07/2010
b) Individual measures
The applicants did not ask for pecuniary damage and submitted that any finding of a violation of Article 8 would provide sufficient redress for the non-pecuniary damage that they had sustained.
On 29 June 2009 (that is before the Grand Chamber rendered its judgment in the case) the Lausanne District Court, at the applicant’s request, ordered as a provisional measure that the child should live at his mother’s address in Lausanne, suspended the father’s right of access and granted parental authority to the mother, so as to allow her to renew the child’s identity papers (§ 47 of the Court’s judgment).
The return order to Israel was not enforced and the child resides with his mother in Switzerland.
In October 2010 the applicant requested the revision of the judgment of the Federal Court of 16 August 2007 ordering the mother to return the child to Israel. On 26 May 2011 the Federal Court rejected the revision request stating that the applicant has at her disposal an ordinary way of revision of the return order on the grounds of the changes that occurred in the circumstances of the case on the basis of Article 13 of the Federal Law on international child abduction and the Hague Conventions on the protection of children and adults (LF-EEA).
II.General measures
Action was taken as soon as the Grand Chamber judgment was delivered to bring it to the attention of the authorities concerned (which apply the Convention directly) with a view to avoiding similar violations. The European Court’s judgment was transmitted on 7 July 2010 to the Federal Court and other authorities directly concerned. A summary of the judgment was also published in the Quarterly Report on the European Court of Human Rights case-law 3/2010 and disseminated to all cantonal and federal authorities. This report was published on the Internet site of the Federal Office of Justice ().
The Swiss authorities are of the opinion that no further general measure is required, as it follows from the judgment that it was only the developments which occurred while the case was pending before the European Court which have led the latter to find a violation.
III.Conclusions of the respondent State
The government considers that the measures taken will prevent other similar violations and that Switzerland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
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