Eskinazi and Chelouche v. Turkey (dec.)

Information Note on the Court’s case-law No. 81

December 2005

Eskinazi and Chelouche v. Turkey (dec.) - 14600/05

Decision 6.12.2005 [Section II]

Article 8

Article 8-1

Respect for family life

Obligation on applicant to return her child to Israel under terms of Hague Convention: inadmissible

Article 6

Civil proceedings

Article 6-1

Fair hearing

Question whether there is a risk of a denial of justice in the country to which a child must return after her removal was found to be unlawful under the Hague Convention: inadmissible

The first applicant, who is married, visited Turkey with her daughter, then 4 years old, initially for a short stay, but later decided to remain there with her daughter despite the disapproval of the girl’s father. She then filed a petition for divorce. She was provisionally granted custody of her daughter, which she had previously shared with her husband. The husband, who was living in Israel, in turn filed a petition for divorce in the Tel Aviv rabbinical court. Observing that the child was habitually resident in Israel with her mother who, although being a Turkish national, had been resident in that country, the rabbinical court ordered the mother to return the child to Israel, failing which her action would be classified as a “wrongful removal of a child” under the Hague Convention of 1980 on the Civil Aspects of International Child Abduction. Proceedings were initiated under that Convention in order to secure the child’s return to Israel. They resulted in an order of the Turkish courts that the child be returned pursuant to the provisions of the Hague Convention. The father brought an action for enforcement. The interim measure indicated by the Strasbourg Court under Rule 39 of its Rules of Court resulted in execution of the order being stayed. The husband of the first applicant, who was also the father of the second, was authorised to intervene in the proceedings before the Court.

Inadmissible under Article 8 – The refusal of the applicant, who shared custody with her husband, to return her child to Israel, in breach of the husband’s rights, fell within the scope of the Hague Convention, even though the father had initially consented to a ten-day stay in Turkey. The Court, moreover, had no reason to question the domestic authorities’ findings of fact and confirmed that, at the time of the order for the child’s return, the child had been in a situation of “wrongful removal” within the meaning of the Hague Convention. The decisions of the Turkish courts, which had considered that the child’s return to Israel would not expose her to physical or psychological harm or place her in an intolerable situation and/or one incompatible with her fundamental rights and freedoms, had not been arbitrary. There was nothing to suggest that the procedure followed in that connection had not been fair or had not enabled the mother to play a sufficient role in protecting her interests. Consideration still had to be given to Article 20 of the Hague Convention, which provided that the return of the child might be refused “if [that] would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms”. The first applicant, the child’s mother, had complained that she would suffer because of discriminatory procedures and religious considerations if, the impugned measure having been executed, she and her daughter then became subject to rabbinical justice in Israel in connection with the divorce and other related matters. The Court examined those arguments under the head of Article 6(1), which, in the present case, required it to ensure that the applicants would not risk being subjected to “a flagrant denial of justice” in Israel, a State not party to the Convention.

Inadmissible under Article 6(1) – At the time when the Turkish authorities had been required to secure the child’s return, they had had no cause to find any “substantial grounds for believing” that there was a risk of a “flagrant” denial of justice in Israel, as feared by the mother, without going into the details of a broad debate on the specific features of the Israeli judicial system. The authorities had not been bound by any treaty obligation of Turkey to address such a broad issue before authorising the child’s return. Secondly, the Court could not see any reason to question the sincerity of the father’s statement at the hearing that he hoped the proceedings would be dispassionate and that he had no intention of obstructing them. Lastly, there was nothing to suggest that any proceedings in Israel would lead to a hasty decision without an appropriate examination of all the mother’s claims. Moreover, in the last instance she would be entitled to take her case to the Israeli Supreme Court, which could review decisions of the rabbinical courts to prevent any flagrant breach of the law. Accordingly, the Court was not persuaded that the Turkish authorities had had sufficient elements before them to suggest that any shortcomings in the proceedings that the applicants might face in Israel would constitute a “flagrant denial of justice”. Moreover, whilst it was true that the outcome of such proceedings would not be subject to subsequent review at the European level, the Court was nevertheless reassured by the object and scope of Israel’s obligations towards the countries of which the applicants were nationals under other human rights protection instruments in force in that State: manifestly ill-founded.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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