Resolution CM/ResDH(2010)172

Execution of the judgment of the European Court of Human Rights
Todorova against Italy

(Application No. 33932/06, judgment of 13 January 2009, final on 13 April 2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the breach of the right to respect for family life on account of the authorities’ failure, between 2005 and 2006, to ensure that the applicant’s consent to giving up her children had been given in full knowledge of its implications and had been attended by the appropriate guarantees (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2010)172

Information on the measures taken to comply with the judgment in the case of
Todorova against Italy

Introductory case summary

This case concerns a violation of the applicant’s right to respect for her family life due to the way in which proceedings for adoption of her children (between mid-2005 and early 2006) were procedurally managed by the authorities, who failed to ensure that her consent to giving up her children had been given in full knowledge of its implications and had been attended by the appropriate guarantees (violation of Article 8).
The applicant is a Bulgarian national who gave birth to twins on 07/10/2005. As she was initially not willing to acknowledge them legally, on 10/10/2005 the Public Prosecutor at the Bari Children’s Court applied for emergency placement in a children’s home. Although the applicant wanted more time to think about her initial decision to give up her children, the Children’s Court – to which two requests to be heard to this end were submitted on 07/10/05 and 11/10/05 - declared the children eligible for adoption on 02/11/2005. This decision became final on 02/12/2005, the Public Prosecutor having waved his right to appeal against it and despite a further request by the applicant to be heard and to suspend the procedure. On 06/12/2005 the children were temporarily placed in a family with view to their adoption. On 21/12/2005 the Children’s Court declared that the request to suspend the proceedings was procedurally inadmissible, because the children had already been declared eligible for adoption.
The European Court first noted that “the Italian authorities, following the applicant’s abandonment of the children, took all necessary measures to protect them”. However, it considered that declaring the children eligible for adoption 27 days after their birth, without hearing evidence from their mother, had been a drastic step, in particular taking into account that the applicant had asked to be heard, having begun to entertain doubts as to her decision to give up the children (§§ 73 and 80 of the judgment). It further stressed that “the complexity of the case and the subtle balance which should have been made between the interest of the children and the interest of their mother, required that a particular importance be given to procedural obligations necessarily deriving from Article 8 of the Convention. In this particular case, it was crucial for the applicant to express herself before the judicial authority and to challenge the decision to abandon her children” (§ 78 of the judgment).
Account should also be taken of the particular situation of the applicant, who was under a certain psychological stress when she bore her children, due to the fact that she was illegally residing in Italy, alone and without a job (§ 75 of the judgment). That is why the authorities’ refusal to hear the applicant “prevented her from being sufficiently involved in the whole decision-making process, which was necessary for her in order to have her interests safeguarded pursuant to Article 8 of the Convention. The Court is not even convinced that the necessity of fast-track proceedings, which go hand in hand with cases concerning the interests of a child, required such a drastic measure as the declaration of adoptability 27 days after the birth, without hearing the applicant. No doubt that it was preferable to quickly take a decision on the future of the two children; however, the Court considers that the fact of declaring the children adoptable following a procedure in which the mother has never been heard, although she asked to be heard as she started to entertain doubts as to her decision to give up the children, constituted a measure that scarcely took into account the facts of this specific case. Although recognising that in this case the courts acted in good faith to protect the well-being of the children, the Court considers that the procedure followed prevented the applicant from adequately and effectively presenting her arguments as well as from protecting her right to lead a private and family life” (§§79, 80 and 81 of the judgment).

I.	Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total	
-	15 000 EUR	2 150 EUR	17 150 EUR	
Paid on 11/06/2009	

b) Individual measures

The children were adopted a few years ago (in 2005). Therefore it does not appear possible, in the light of the situation, to envisage any individual measure other than the payment of just satisfaction in respect of non‑pecuniary damages suffered by the applicant.

II.	General measures

Following the facts at the origin of this case, Law No. 149/01 introduced new rules concerning the adoption of minors, including the “declaration of adoptability” procedure (Title III, part II entered into force in 2007). It provides in particular greater involvement of parents since the beginning of the procedure (Article 8§4), as well as clearer rules for the different steps of the procedure itself. The procedure for appealing against a measure of the Children’s Court declaring a child adoptable has not changed (Articles 14 and 16).
The judgment has been published on the Internet site of the Court of Cassation, in the database on the case‑law of the European Court of Human Rights (http://www.italgiure.giustizia.it), and on the government’s website (http://www.governo.it/presidenza/contenzioso>).These websites are widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike. The judgment has also been disseminated to all competent authorities.
According to the Italian authorities, this is an isolated case and therefore the general measures already adopted – i.e. new law, publication and dissemination - are sufficient to avoid future similar violations.

III.	Conclusions of the respondent state

The government considers that, in light of the circumstances, no individual measure is possible in this case, apart from the payment of the just satisfaction awarded to the applicant by the Court, that the general measures adopted will prevent similar violations and that Italy has thus complied with its obligations under Article 46 paragraph 1 of the Convention.