The ECHR decision of January 14, 2021 in the case "Terna v. Italy" (aplication No. 21052/18).
In 2018, the applicant was assisted in preparing the aplication. Subsequently, the aplication was communicated to Italy.
In the case, an aplication was successfully considered about the inability of the applicant, who was previously the guardian of her granddaughter, to exercise the right to visit a child placed under the guardianship of third parties, and the subsequent suspension of the applicant's right to visit the child. The case involved a violation of the requirements of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. There was no violation of the requirements of article 14 in connection with article 8 of the Convention in the case.
THE CIRCUMSTANCES OF THE CASE
The applicant, an Italian national, was convicted of a number of crimes. She has been the guardian of her granddaughter, a gypsy by origin, since her birth in 2010.
Since 2016, when the granddaughter was transferred to the custody of third parties, the applicant has constantly applied to the Italian courts with a request to allow her to see her granddaughter, but she was unable to exercise her right to visit her granddaughter due to court decisions. Subsequently, the child was transferred for adoption, and the applicant's right to see the child was suspended.
Regarding compliance with article 8 of the Convention. The parents of the child in the present case were deprived of parental rights, and even in the absence of an official procedure for placing the child under the guardianship of the applicant, her grandmother, she took care of her granddaughter from the moment of her birth, a close personal connection was established between them, and the applicant acted in all respects as if she were the mother of the child. Consequently, the relationship between the applicant and the child was in principle the same in nature as other family relations regulated by article 8 of the Convention.
The applicant has constantly sought to restore communication with her granddaughter since her transfer to the custody of third parties, but, despite various court decisions, the applicant has not been able to exercise her right to see her granddaughter.
In the present case, the Italian authorities were faced with a really difficult situation, arising, in particular, from the risk of abduction reported by the guardian and the consequences associated with organizing the applicant's visits to her granddaughter. At the same time, the relevant court twice instructed the social services to arrange a meeting between the applicant and the granddaughter in such a way as to ensure the anonymity of the child's residential address, but these services did not comply with the court's decision.
The Italian authorities did not demonstrate due diligence in the present case and did not perform the actions that could reasonably be expected of them. In particular, the social services did nothing to create the necessary conditions for the applicant to fully exercise her right to meet her granddaughter.
The Italian courts were slow to take the practical steps necessary to establish effective contact between the applicant and the child, and subsequently, for a certain period, they "tolerated" the applicant's lack of opportunity to see her granddaughter. In particular, the Italian courts decided to suspend the applicant's right to see her granddaughter until an expert opinion was received, although in fact no meetings had been organized earlier.
Even though the European Court considered the legal resources provided by the Italian legislation to be sufficient for the Italian authorities to fulfill their positive obligation under Article 8 of the Convention, it cannot be ignored that for some period the domestic authorities allowed a de facto situation to exist where the authorities, despite a number of court decisions, completely ignored the possible long-term consequences of the permanent separation of the child and the person responsible for the girl, i.e. the applicant.
In view of the above, and despite the discretion granted to the Italian authorities in this area, the Italian authorities failed to take appropriate and sufficient measures to respect the applicant's right to see her granddaughter, violating the applicant's right to respect for family life.
The case involved a violation of the requirements of article 8 of the Convention (adopted unanimously).
Regarding compliance with article 14 of the Convention, considered in conjunction with article 8 of the Convention. The Italian courts placed the applicant's granddaughter under guardianship on the basis of expert opinions, which found that the applicant could not perform parental functions and that the child was expected to face increasing threats to grow up in a criminal environment, and also because the girl had initial signs of an attachment disorder. A disorder of behavior and social relations that develops in childhood, arising from a lack of care and attention.After placing the child in custody, the Italian courts twice ruled on maintaining contact between the applicant and the child.
Moreover, the child's guardian asked the guardianship court to suspend contacts between the applicant and the child due to the risk that the child could be abducted by representatives of the Roma community. Although the guardianship court initially granted the guardian's request in advance, ordering the suspension of visits to the child and taking interim measures to prevent her abduction, the court that considered the case on the merits changed its decision and ordered the competent authorities to ensure that the applicant's meetings with the child were held, while maintaining the anonymity of the child's place of residence.
The fact that, despite the existence of a court order for meetings between the applicant and the child, these meetings were not organized, was a violation of the procedure for holding meetings by the social services, which allowed the European Court to establish a violation of article 8 of the Convention due to improper and insufficient efforts on the part of the Italian authorities to ensure respect for the applicant's right to visit her granddaughter. As follows from the case-law of the European Court, the mentioned delays indicated the presence of a systemic problem in Italy.
The third party who entered into the present case referred to a 2011 study according to which a large number of Roma children were placed under guardianship in Italy. Nevertheless, the Italian courts did not refer to the ethnic origin of the child and her parents when they justified the need to transfer the child to custody. This measure was explained by the best interests of the child, which consisted in removing the girl from the environment in which she was severely punished in various ways, as well as the applicant's inability to perform the functions of a parent in relation to the child.
As for the attitude of the child's guardian to the current situation, although his arguments reflected bias and could not be ignored as unsuccessful, albeit objective, remarks, in themselves they were insufficient grounds for concluding that the decisions of the Italian courts were due to the ethnic origin of the child and her parents. Despite the fact that the guardianship court had previously granted the guardian's request, deciding to suspend the applicant's visits to the child and taking interim measures to prevent the abduction of the girl, this decision was subsequently changed by another court.
In the case, the requirements of article 14 of the Convention, considered in conjunction with article 8 of the Convention, were not violated (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 4,000 euros in compensation for non-pecuniary damage.