FOURTH SECTION
Application no. 4604/09
by Flamur QAMA
against Albania and Italy
lodged on 23 December 2008
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Flamur Qama, is an Albanian national who was born in 1960 and lives in Durrës, Albania.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2000 the applicant and his family – his wife and six-year-old son – moved to Italy in order to obtain adequate medical treatment for his wife, who was suffering from a serious disease. In 2002 the applicant returned to Albania, following disagreements with his in-laws. He left his wife and son in Italy. His wife died in October 2002 and his son remained in Italy with the applicant’s in-laws.
On an unspecified date in 2002, the applicant’s sister-in-law, Ms Z., filed an action with the Youth Court (Tribunale per i Minorenni) in Le Marche, Ancona, Italy, seeking custody of the applicant’s son. On 4 June 2003 the Italian domestic court granted her request. The court suspended the applicant’s parental rights and prohibited the child’s removal from Italian territory. The applicant was notified neither of the proceedings nor of the decision.
On 7 October 2003 the applicant filed an action with the Albanian Durrës District Court, accusing his in-laws of child abduction contrary to Article 127 of the Criminal Code. On 29 December 2004 the Durrës District Court found the applicant’s in-laws guilty as charged and sentenced three of his in-laws, including Ms Z., to a fine. This decision was upheld by the Court of Appeal and the Supreme Court in 2005 and 2007 in respect of Ms Z. alone.
From 2003 to 2009 the applicant sought the assistance of the relevant Albanian authorities, such as the Ministry of Justice, the Ministry of Foreign Affairs, the Prosecutor’s Office, the People’s Advocate (Ombudsman), in ensuring the right of access to his child.
On 6 July 2005 the General Prosecutor’s Office sought the assistance of the Italian Interforce Police Liaison Office in Albania (“the Interforze”), as regards the status of the applicant’s son in Italy. On 8 July 2005 the Interforze informed the General Prosecutor’s Office of the Italian court’s judgment of 2003.
On 30 June 2006 the Durrës District Court granted a request by the applicant for the right to meet the child at least twice a year (between 1 and 15 August and between 27 December and 6 January). An execution writ was issued on 27 November 2006.
On 16 January 2007 the applicant filed a request with the Youth Court in Le Marche, Ancona. The request was received on 22 February 2007, as can be seen from the acknowledgement of receipt submitted by the applicant.
The applicant stated that he had neither been notified of nor present at the custody proceedings that took place between 2002 and 2003 in Italy. He requested that the child be allowed to travel to Albania so that he could exercise the right of access as established by the Durrës District Court on
30 June 2006. He left it to the Italian courts to decide on another appropriate period of access to his child. The applicant also requested that he be allowed to have unobstructed telephone contact with his child, which had hitherto not been the case. He also requested that Ms Z.’s custody rights be revoked and that the child be placed in the custody of the Italian social services. Referring to his social and economic situation, the applicant stated that he was employed, earned 700 euros per month and had a flat measuring 70 sq. m. There is no indication to date that the Italian court entertained his request.
On 15 November 2007 the applicant, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), requested the Italian Ministry of Justice to institute proceedings for validation of the Albanian court’s judgment of 30 June 2006 and enforcement of the exercise of his right of access to his child.
On 3 March 2009 the Durrës District Court ordered the applicant’s sister-in-law, Ms Z., to allow the applicant to see his child. The decision stated that the meeting was a legal requirement in order for the applicant to exercise his parental responsibility. On the same day another decision of the same court found Ms Z guilty of the criminal offence of unlawfully retaining the child and sentenced her to a fine.Relevant international and domestic law
1. Hague Convention on the Civil Aspects of International Child Abduction, (“the Hague Convention”)
The Hague Convention was ratified by Albania on 4 November 2005 by Law no. 9446. It entered into force in respect of Albania on
1 August 2007 and in respect of Italy on 1 May 1995 pursuant to Article 38 of the Convention. Its relevant provisions read as follows:
“The States signatory to the present Convention,
Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,
Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access,
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions
Article 1
The objects of the present Convention are –
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Article 5
For the purposes of this Convention –
a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.
Article 7
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures –
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
Article 8
“Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
(...)”
Article 9
“If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.”
Article 21 [Rights of access]
An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.
The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights.
The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.
Article 38
Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession.
The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.
The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance
2. The Constitution of Albania
Article 142 § 3 provides that “State bodies shall comply with judicial decisions.”
3. The Italian Civil Code
Article 330 of the Civil Code provides:
“The court may declare parental rights forfeit if the parents do not perform or neglect the obligations inherent in their parental role or abuse the powers related thereto causing serious detriment to the child.
In such eventuality, the court may, if there are serious grounds for so doing, order the child’s removal from the family home.”
Law no. 149 of 28 March 2001 has amended certain provisions of Book I, Part VIII, of the Civil Code and of Law no. 184/1983.
Article 333 of the Civil Code, as amended by section 37(2) of Law no.149/2001 provides:
“Where the conduct of one or both parents is not such as to give rise to their parental rights being declared forfeit under Article 330, but is nonetheless detrimental to the child, the court may adopt any measure that is appropriate in the circumstances and may even order the child’s removal from the family home or the removal of the parent or partner who has been ill-treating or abusing the child.
These measures may be revoked at any time.”
Article 336 of the Civil Code, as amended by section 37(3) of the same Law, provides:
“The measures indicated in the preceding Articles shall be adopted following an application by the other parent, a family member or the public prosecutor and, where prior decisions are being revoked, also by the parent concerned. The court shall deliberate in private session and give a reasoned decision after having gathered information and heard representations from the prosecutor’s office. If the measure is being sought against one of the parents, that parent must be heard. In cases of emergency, the court may adopt, even of its own motion, interim measures in the interests of the child.
In respect of the decisions referred to in the preceding paragraphs, the parents and the child shall be assisted by a lawyer, remunerated by the State in cases provided for by law.”
Decisions of the youth courts made in accordance with Articles 330 and 333 of the Civil Code are rendered in non-contentious proceedings (volontaria giurisdizione). They are not final decisions and can therefore be revoked at any time. No appeal lies against these decisions, but either party concerned may lodge an application (reclamo) with the Court of Appeal for a review of the situation giving rise to the decision.
COMPLAINTS
The applicant complains of a breach of Articles 6 and 8 of the Convention in that the Albanian authorities have failed to enforce the judgments of 30 June 2006 and 3 March 2009.
He also complains of a breach of Articles 6 and 8 of the Convention as a result of the alleged failure of the Italian courts to examine his requests of 16 January and 15 November 2007.
QUESTIONS TO THE PARTIES
Questions to the Albanian Government
1. Has there been a breach of Articles 6 and 8 of the Convention as a result of the Albanian authorities’ alleged failure to enforce the Durrës District Court’s judgments of 30 June 2006 and 3 March 2009?
2. The Albanian Government are requested to provide detailed information as regards the steps necessary/required to co-operate with the Italian authorities in order to ensure speedy compliance with the Albanian courts’ final judgments.
Questions to the Italian Government
1. Did the applicant exhaust all effective and available domestic remedies in respect of his complaints as regards the right of access to his child?
2. Has there been a breach of Articles 6 and 8 of the Convention as a result of the in absentia custody proceedings of 7 October 2003 and the Italian authorities’ alleged failure to examine the applicant’s request of 16 January and 15 November 2007?
3. The Italian Government are requested to provide detailed information as regards the steps necessary/required to examine the applicant’s requests and ensure respect for his right of access to the child.
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