Information Note on the Court’s case-law No. 101
October 2007
Sanchez Cardenas v. Norway - 12148/03
Judgment 4.10.2007 [Section I]
Article 8
Article 8-1
Respect for family life
Respect for private life
Conjecture by court hearing an application for access that the child had been abused by the applicant: violation
Facts: In 1995 the applicant separated from the mother of his two sons. Although they initially agreed on terms of access, a dispute subsequently arose following allegations by the mother to the police that the applicant had sexually abused one of the boys. The police investigation into the allegations was later discontinued. In 2001 a city court granted the applicant access on alternate weekends and for part of the holidays after rejecting the allegations of sexual abuse as being a fabrication by the mother designed to obstruct the applicant’s access rights. That decision was overturned by the High Court, which refused the applicant access as it considered this to be the course most favourable to the children’s development and justified by their best interest. With regard to the allegations of sexual abuse it stated that the fact that there was insufficient evidence for a criminal conviction was not decisive and that no risk could be taken in the case of access to minors; it added that there were many elements that might indicate that abuse had occurred, although it did not find it necessary to go into or take a stance on that point.
Law: Even though the impugned passage in the High Court’s judgment had had no bearing on its decision regarding access, it suggested that the applicant might have engaged in highly reprehensible conduct vis-à-vis his son and was capable of adversely affecting his enjoyment of his private and family life, in the ordinary sense of those terms. The complaint thus fell within the scope of Article 8. The interference was “in accordance with the law” and pursued the legitimate aim of protecting the rights and freedoms of others. However, as regards the necessity of the interference, it was not apparent why the High Court should have indicated that there was evidence of abuse but then decided that it was unnecessary to go further into that issue. The message thereby conveyed was that, on the basis of the available evidence, it suspected the applicant of the sexual abuse of one of his sons. In the Court’s opinion, the High Court should either have dealt with that issue fully, with all that meant in terms of evidentiary assessment and reasoning, or left it to one side. Portraying the applicant in that light in an authoritative judicial decision had stigmatised him, damaged his honour and reputation and adversely affected his private and family life. There had been no cogent reasons for the inclusion of the impugned passage. Accordingly, the interference was not sufficiently justified and was disproportionate.
Conclusion: violation (unanimously).
Article 41: EUR 7,000 for non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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