Information Note on the Court’s case-law No. 97
May 2007
Giusto, Bornacin and V. v. Italy - 38972/06
Decision 15.5.2007 [Section II]
Article 3
Degrading treatment
Inhuman treatment
Repatriation of a child who had been subjected to abuse in Belarus: inadmissible
The applicants are a married couple who claimed they were also acting on behalf of the child they took in as part of a foreign exchange and holiday scheme for children in the care of a Belarusian orphanage. Over the previous three years she had spent about 18 months with them, resulting in a relationship similar to that between parents and their children. According to the applicants, every time she arrived she was bruised, had trouble sleeping and her behaviour was almost autistic; these disorders would gradually subside over time, only to reappear as the date of her return to her country drew closer. She also had cigarette burns on her abdomen. The girl said she had been undressed, bound, kissed and bitten. A psychologist attested the psychological after-effects. The child spoke of suicide and tried to kill herself. She refused to visit a friend, who she said was one of the people who had sexually abused her. The boy concerned confirmed this and the psychologist found both children’s stories plausible. The prosecuting authorities opened a file. Medical examinations revealed traces of violence. The applicants applied to the children’s court (“the court”) to adopt the child, but their application was rejected. When the Belarusian Ministry of Education protested, the embassy invited the court to order the child’s repatriation. The court observed the various traces of the violence the child had suffered in the orphanage and the need for therapy. She met two doctors from Belarus but was in a state of stress and adamantly refused to take her clothes off. The embassy sent the court a programme for the child’s full psychological, pedagogical and medical rehabilitation. They said that the authorities had taken urgent steps to clarify the situation in the orphanage and undertook to keep the Italian Government informed of any developments. After examining the child, Belarusian medical experts ruled out the possibility that repatriating her might affect her physical or mental health. She would be accompanied on the journey by specialised staff. The embassy considered that there was no objective case for keeping the girl in Italy and invited the authorities to act. Failing that, Belarus would be obliged to suspend international adoptions and holidays for children in Italy. A report drawn up by a child neuropsychiatrist stated that the child was no doubt physically fit but not psychologically fit for the journey. In a note addressed to the president of the court, the Commission for International Adoption of the Presidency of the Council of Ministers expressed its willingness to offer the broadest, most practical cooperation to facilitate the repatriation. The court agreed to the repatriation, specifying that the applicants were authorised to accompany the child on her return journey or, failing that, to join her in her country and stay with her, with the consent of the local authorities, for as long as was deemed appropriate. The court also asked the Belarusian authorities to give it news of the child periodically. The applicants hid the child. The court ordered her to be found and placed in care for as long as was strictly necessary to organise her repatriation. The applicants appealed and requested a stay of execution of the court’s decision, which was immediately enforceable. The carabinieri found the child and she was placed in an institution. Before the court of appeal the representative of Belarus declared that it was no longer possible to repatriate the child in the conditions initially envisaged. The court of appeal did not rule on the request for a stay of execution of the disputed order. Accompanied by two doctors the child was taken by taxi to the airport, escorted by a police car. The same day the applicants learnt of the child’s transfer on television, and went to the airport with their lawyers. Their representatives filed an application for urgent proceedings under Rule 39 of the Rules of Court, but it did not reach the registry until the child had already boarded the plane. The application was then withdrawn. The court of appeal dismissed the applicants’ appeal as the disputed decision had been adopted by the court in the particular circumstances described above. Furthermore, the applicants had no parental authority over the child and were therefore not parties to the judicial proceedings concerning her. Even if the applicants could have been considered to have locus standi, their allegations would not have been admissible. The court of appeal stated that it had heard unofficially that the child had already been repatriated on the initiative of the Belarusian authorities, in conditions different from those stipulated by the court. This was allegedly justified by the new court order adopted after the applicants hid the child. The doctors who accompanied the child back to Belarus returned and submitted a report to the court stating that the girl was in good psychological and physical health. The applicants have had no contact with the child and received no news of her state of health, but have learnt through the media that she was with her brother in a foster family.
Inadmissible under Article 3 – In view of all the precautions taken by the authorities, although the child’s repatriation inevitably caused a certain amount of suffering, in the particular circumstances of the case it did not amount to treatment at variance with Article 3: manifestly ill-founded.
Inadmissible under Article 6(1) – Although under the Italian legal system the applicants had no right to represent the interests of the child, a minor, in court proceedings (locus standi) as they were not her guardians and had no parental authority over her, their right to access to justice had not been restricted. The judges had been professionals and the court decisions had been arrived at by means of an adversarial hearing. Lastly, the note from the Italian Ministry of Justice had in no way indicated that the authorities had wished to influence the outcome of the proceedings: manifestly ill-founded.
Inadmissible under Article 8 – It was true that the child had stayed with the applicants for periods they claimed totalled eighteen months. The Court considered, however, that these defacto ties had not been close enough to qualify as “family life” under Article 8 of the Convention. It attached particular importance to the fact that all the stays had been arranged under a scheme organised by an association. As the domestic courts had pointed out, the purpose of the scheme was not to give orphans new families but simply to enable them to spend holidays in Italy: incompatible ratione materiae.
Inadmissible under Article 13 – No defensible grievances: incompatible ratione materiae.
Inadmissible under Article 34 – No failure by the respondent Government to comply with a provisional measure stipulated by the Court: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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