Information Note on the Court’s case-law No. 123
October 2009
Tsourlakis v. Greece - 50796/07
Judgment 15.10.2009 [Section I]
Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Father’s inability to consult conclusions of welfare report in proceedings concerning the custody of his son: violation
Facts – In 2000 the applicant and his wife separated when their child was aged about eleven. In 2001 the Court of First Instance gave sole custody of the child to his mother. The Court of Appeal ordered a welfare report, to be prepared by the Child Welfare Society. In 2005 the Court of Appeal granted permanent custody of the child to his mother. Following that judgment the applicant attempted to obtain a copy of the Society’s report from the Court of Appeal case file. However, the report was not in the file. The Society told the applicant it could not grant his request because the report was a confidential document prepared for the exclusive attention of the Court of Appeal. The applicant then applied to the Ombudsman’s Office, which informed him that the Society could not send him a copy of the report because he had not addressed his request via the competent public prosecutor. The applicant asked the public prosecutor at the Criminal Court to support his request, but the prosecutor refused.
Law – Article 8: The applicant’s inability to consult the Child Welfare Society’s report after the Court of Appeal judgment concerned the exercise of his right to effective access to information relating to both his private and his family life. The domestic legislation on the use of welfare reports was less than clear. Furthermore, the information contained in the report had been of relevance to the applicant and to his relationship with his son. While the Court of Appeal had taken the view that it was in the child’s interests not to be taken away from his mother, it had recognised that the applicant showed great affection towards his son. Therefore, obtaining a copy of the report would have enabled the applicant to be informed of any negative findings contained in it which might have influenced the judges’ decision and, if appropriate, to take them into consideration in order to improve the relationship with his son in the future. Moreover, it appeared that the applicant had also been involved in the preparation of the report, and he therefore had a legitimate claim to be informed of how the details he had provided had been analysed and taken into account by the Society. The authorities’ refusal in substance to allow the contents of the report to be disclosed after the conclusion of the proceedings before the Court of Appeal, without giving any reasons, amounted to a breach of their positive obligation to ensure effective observance of the applicant’s right to respect for his private and family life. It was for the authorities to demonstrate that compelling reasons existed for not disclosing to the individual concerned a report that contained personal information which affected him directly. In the instant case, neither the competent authorities nor the Government had advanced any such reasons, although the report in question, by its very nature, contained information of that kind.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of 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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