Information Note on the Court’s case-law 259
February 2022
Roth v. Switzerland - 69444/17
Judgment 8.2.2022 [Section III]
Article 6
Civil proceedings
Article 6-1
Access to court
Cancellation without judicial review of the suspensive effect of fathers’ appeals, thereby enabling their children to leave the country with their mothers and removing the jurisdiction of the domestic courts: violations
[This summary also covers the judgment in the case of Plazzi v. Switzerland, 44101/18, 8 February 2022]
Facts – In the cases of Plazzi and Roth, the Child and Adult Protection Authority (APEA) authorised the transfer abroad of the applicants’ children’s places of residence, deciding that any possible appeal against that measure would be devoid of suspensive effect.
Since the APEA’s decision was enforceable immediately, in the case of Plazzi, the applicant’s child, V.R., moved with his mother D.R. to the Principality of Monaco on the data of notification of the decision, and in the case of Roth, the applicant’s child, L.L., moved with his mother, F.L., to Germany a few days after the decision was given.
The applicants complained that they had been unable to appeal to a domestic court against the APEA’s decision. Following the departure of the mothers and children, the Swiss courts had declined jurisdiction to decide on the merits of the applicant’s appeal and to reinstate its suspensive effect, on the grounds that the transfer abroad of the child’s place of residence had simultaneously transferred international jurisdiction to the States in question.
Law – Article 6 § 1:
(a) Definition of the subject matter of the dispute pending:
The change of the children’s place of residence had also led to the transfer of international jurisdiction to those States and removed the Swiss courts’ jurisdiction to adjudicate the applicants’ appeals, pursuant to Article 5 of the Hague Convention of 1996. Consequently, following the applicants’ appeals against the APEA’s decisions, the Appeal Court (Plazzi) and the Bern Supreme Court (Roth) had noted that they no longer held jurisdiction to adjudicate the appeals, deal with the requests for reinstatement of suspensive effect or examine the merits of the case. The Federal Court upheld those decisions in both cases.
(b) Restriction of the right of access to a tribunal:
The applicants had sustained a restriction of their right of access to a tribunal caused by the APEA’s cancellation of the suspensive effect of any appeal, as reflected in the domestic courts’ decision to decline jurisdiction.
(c) Justification of the restriction:
Once they had declined jurisdiction, the domestic courts had been unable to conduct full, effective de facto and de jure scrutiny, by conducting an adversarial examination of the cases in the framework of a fair trial consonant with the guarantees of Article 6 § 1.
Those courts’ judgments were based on the Hague Convention of 1996, which only applies to situations where there had been a change of the child’s habitual place of residence within the meaning of Article 5 of that convention. Those judgments had not been arbitrary and could be justified if regard was had solely to the fact of a change of habitual place of residence.
However, the cancellation of the suspensive effect of any possible appeal had been decided by the APEA, which is an administrative authority, and the Court of Appeal, the Bern Supreme Court and finally the Federal Court had been unable to remedy that situation. The APEA had ruled out any subsequent effective review by a domestic judicial body with full jurisdiction.
In certain exceptional situations duly justified by the child’s best interests, the urgency of a given situation requires the parent in question to be able to change the child’s place of residence without having to wait for the final judgment on the merits. In such cases the availability of an effective appeal procedure, accompanied by provisional measures, is sufficient but also necessary. This does not rule out any possibility of the administrative authorities exceptionally cancelling the suspensive effect of the appeal. In such circumstances, however, the parent concerned must be sure of being able to apply to a court before the cancellation of the suspensive effect can come into effect, and he or she must be informed of the procedure to follow.
The APEA and the Government had justified the urgency of cancelling the suspensive effect of any appeal with reference to the best interests of the children concerned, whom the APEA wished to protect from the negative impact of such an appeal. However, the reasons advanced for the urgency in the present cases had not been serious enough to justify preventing the applicants from applying to a court before the entry into force of the cancellation of suspensive effect. That was particularly so in the case of family-law proceedings which were liable to have very serious and very difficult consequences for the applicants inasmuch as they had a direct bearing on their future relationship with and rights in respect of their children.
The Government submitted that the applicants could have applied to the Appeal Court or the Bern Supreme Court for the reinstatement of suspensive effect on the date of notification of the APEA’s decision. Had those courts allowed the applicants’ requests, Switzerland would have retained international jurisdiction to examine the merits of the case. In any event, they could have used such a request to obtain an assessment from a judicial body of the risk of a transfer of international jurisdiction abroad.
The applicant in the Plazzi case had not delayed in lodging his appeal with the Appeal Court, since he had done so on Tuesday 29 August 2017, the decision having been notified on Friday 25 August 2017. The applicant had not refrained from exercising the remedies which existed, at least in theory. Furthermore, D.R. had departed with V.R. for the Principality of Monaco on the very day of notification of the APEA’s decision, which gave the applicant no chance of applying to the Appeal Court to reinstate the suspensive effect of his appeal in order to preserve Swiss jurisdiction and gain access to a trial court.
In the case of Roth, the Court wondered about the length of time the applicant had taken to lodge his appeal with the Bern Supreme Court, that is to say almost one month between the date of notification of the decision and the date when he learnt that F.L. had taken up fresh employment in Germany. The applicant had thus, a priori, failed to avail himself within a reasonable time of a theoretically existing remedy. It had been incumbent on the applicant, having taken cognisance of the impugned decision and seeking proper advice if necessary, to enquire into the available legal remedies. Nevertheless, in view of the complexity of the legal situation, the applicant and his lawyer must have taken some time to seek the available remedies against the APEA’s decision after having taken cognisance of it when it had been notified on Wednesday 27 January 2016. While accepting that that was not a valid argument in itself, the Court acknowledged that, therefore, they had had insufficient time left to submit the request for provisional measures or, a fortiori to obtain a judicial decision before L.L.’s and F.L.’s departure for Germany, which had no doubt occurred on the afternoon of Friday 29 January 2016, considering that F.L. had begun her new work in Germany on Monday 1 February 2016.
In neither case, therefore, did the Government provide evidence of the mode of implementation and the practical efficacy of the remedies which had suggested in the specific circumstances of the case. Nor did they give any examples of relevant case-law in the domestic courts relating to similar cases.
Accordingly, such a remedy before the Appeal Court or the Bern Supreme Court would not have had any reasonable prospects of success in respect of the complaint put forward by the applicants under Article 6 § 1.
Consequently, the applicants had had no access to a domestic court before the children’s departure abroad with their mothers, in order to contest the merits of the decision given by the “APEA” administrative authority and request the reinstatement of suspensive effect.
The very essence of the right of access to a tribunal had been infringed by the APEA’s decisions to cancel the suspensive effect of the applicants’ appeals, followed by the children’s departure abroad with their mothers, which had led the Swiss courts to decline jurisdiction on account of the transfer of international jurisdiction to the respective countries of destination. That restriction had been disproportionate to the aim pursued, that is the protection of the mothers rights and freedoms and those of the applicants’ children, in view of the importance to the applicants of the issues raised by the impugned procedure.
Conclusion: violation (unanimous).
Article 41: EUR 12,000 awarded to each applicant in respect of non-pecuniary damage in the two cases.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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