BALL v. ANDORRA - 40628/10 - HEJUD [2012] ECHR 2059 (11 December 2012)

THIRD SECTION

CASE OF BALL v. ANDORRA

(Application no. 40628/10)

JUDGMENT

STRASBOURG

11 December 2012

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ball v. Andorra,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Alvina Gyulumyan, President,
          Josep Casadevall,
          Corneliu Bîrsan,
          Ján Šikuta,
          Luis López Guerra,
          Nona Tsotsoria,
          Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 20 November 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 40628/10) against the Principality of Andorra lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Toby Nigel Ball (“the applicant”), on 15 July 2010.

The applicant was represented by Mr A. Clavera Arizti, a lawyer practising in Andorra. The Andorran Government (“the Government”) were represented by their Agents, Ms M. Fernández Llorens and Mr J. León Peso.

The applicant alleged that the refusal of the High Court of Justice (Tribunal Superior de Justícia) of Andorra to enforce a final judicial decision setting up a parent-child contact schedule had denied him a fair hearing and had consequently violated his right to maintain meaningful contact with his two children. He relied upon Articles 6 § 1 and 8 of the Convention.

On 5 April 2011 the application was communicated to the Government. The Court also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

On 8 April 2011 the Court informed the Government of the United Kingdom of its right under Article 36 § 1 of the Convention to intervene in the proceedings. By letter of 29 July 2011 the Government of the United Kingdom confirmed that they did not wish to submit written comments on the application and therefore waived their right to intervene in the proceedings.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1969 and lives in Sant Julià de Loria (Andorra). On 15 February 2003 he married a woman with whom he had two children, a boy and a girl, born in 1992 and 2003 respectively.

On 31 March 2004 the applicant left the household, the children remaining with their mother.

On 18 October 2004, the applicant’s wife introduced a petition for legal separation from the applicant. She sought, inter alia, custody of the children, to which the applicant did not disagree.

On 13 June 2005 the applicant and his wife were legally separated. The judge (batlle) reviewing the petition at first instance (“the separation judge”) granted custody of the children to their mother and set up a contact schedule governing the applicant’s contact with his children.

On 14 July 2006, during the course of proceedings for the adoption of interim measures, the separation judge granted a motion made by the applicant’s wife to immediately and provisionally suspend the contact schedule until the production of a psychological report by an impartial expert. In taking this decision, the separation judge relied on: several criminal claims introduced by the applicant’s wife against the applicant that suggested extremely troubled relations between the parents that were negatively affecting their children; a psychological report submitted by the applicant’s wife, according to which the troubled relationship between the parents was damaging the mental stability of their son; and a brief submitted by the public prosecutor, in which he proposed conducting a psychological test on both children before giving the applicant access to them.

On 20 July 2006 the separation judge confirmed his previous decision of 14 July 2006. The judge relied on a psychological report issued by an impartial expert at his request and on the brief submitted by the public prosecutor in concluding that the contact schedule should remain suspended. The applicant was nonetheless allowed to maintain telephone contact with his children and his wife was warned that she had to facilitate this contact.

On 19 December 2006 the applicant’s wife filed a petition for divorce. She also sought custody of the children and that, pending the conclusion of the divorce proceedings, the contact schedule set up by the separation judgment remain suspended. For his part, the applicant agreed with the petition for divorce but also sought custody of the children. He also applied for an interim order restoring the contact schedule set up by the separation judgment in respect of his daughter and establishing a contact schedule under the supervision of a judge and professionals appointed for that purpose in respect of his son.

On 22 December 2006 the applicant applied to the separation judge to have the contact schedule set up by the separation judgment restored in respect of his daughter and a contact schedule operating under the supervision of a judge and professionals appointed for that purpose established in respect of his son. On 15 February 2007 the applicant’s wife opposed the application. On 21 February 2007 the public prosecutor argued for the restoration of the contact schedule set up by the separation judgment of 13 June 2005.

On 21 February 2007 the judge handling the couple’s divorce (“the divorce judge”) dismissed both the applicant’s request for interim measures and his wife’s request to have the contact schedule set up by the separation judgment suspended pending the rendition of a judgment of divorce.

On 2 April 2007 the separation judge ruled on the application of 22 December 2006. He restored the contact schedule set up by the separation judgment in respect of the applicant’s daughter and appointed a psychologist to carry out a psychotherapeutic examination and, if necessary, individualised treatment of both parents and their son with a view to restoring the contact schedule between father and son. In this connection, the judge instructed both the applicant and his wife to deposit 1,500 euros (EUR) each within eight days in security for the cost of the examination. Should the applicant or his wife fail to comply, the judge would order that measures be taken to have the decision enforced.

The applicant’s wife appealed against the decision of 2 April 2007 before the High Court of Justice.

On 19 June 2008 the High Court of Justice partially reversed the separation judge’s decision. It struck down the appointment of the psychologist but upheld the remainder of the decision. The court stated that, the interim measures having expired, the contact schedule set up by the separation judgment should be restored, without prejudice to the possible interim measures regarding parent-child contact that the divorce judge could order pending the rendition of a judgment of divorce.

On 25 June 2008 the applicant applied to the separation judge for enforcement of the decisions of 19 June 2008 and 2 April 2007. The applicant’s wife opposed the application and sought to have the enforcement of those decisions suspended until a judgment of divorce had been delivered. The public prosecutor proposed the suspension of the contact schedule until a psychological examination of both parents and their children had been performed.

On 24 July 2008 the separation judge relied on a psychologist’s report dated 28 February 2008 to provisionally suspend the contact schedule set up by the judgment of 13 June 2005 and appointed a psychologist with a view to its eventual restoration. According to the psychologist’s report, contact between the applicant and the children was not desirable until comprehensive treatment of the children had been carried out.

The applicant appealed against that decision. He sought to have the decision of 24 July 2008 reversed and that of 19 June 2008 applied.

On 21 October 2008, while the applicant’s appeal against the decision of 24 July 2008 was still pending, the judgment of divorce was issued. The divorce judge granted custody of the children to their mother and set up a contact schedule governing the applicant’s contact with the children which was to remain suspended pending the decision of a psychologist, who would be appointed by the court upon enforcement of the judgment. The psychologist was to carry out treatment of the children and, if appropriate, the parents, with a view to restoring contact between the children and their father. The judge relied on several psychological reports that advised against immediate contact between son and father and on the son’s testimony, in which he had expressed his desire not to have contact with his father.

The applicant appealed against the divorce judgment, seeking to have it partially reversed. He accepted custody of his son being awarded to his former wife. However, he sought to have the requirement of psychological treatment removed and an award of custody of his daughter in his favour. In the alternative, he requested that a contact schedule conforming to that of the separation judgment be established in respect of his daughter.

On 12 February 2009 the High Court of Justice decided upon the appeal submitted by the applicant against the provisional suspension of the contact schedule ordered by the separation judge on 24 July 2008. The court stated that since a judgment of divorce had already been delivered, the separation judgment should be set aside and the content of the divorce judgment enforced. Accordingly, the High Court of Justice expressly deprived the separation judge’s decision of 24 July 2008 of any effect.

The applicant then lodged a request for clarification with the High Court of Justice. He requested from the court to clarify whether the decision it had delivered on 19 June 2008 in separation proceedings should be enforced having regard to the fact that the divorce judgment of 21 October 2008 was not yet final nor enforceable.

On 23 April 2009 the court dismissed the applicant’s request for clarification. It stated that the applicant’s request had exceeded the scope of a request for clarification of a judgment, and that the judgment in the applicant’s appeal had been clear in any event. It considered he was instead requesting a judicial pronouncement as to the procedural effects of his appeal against the divorce judgment that had set up a contact schedule. This notwithstanding, the court went on to state that pending an appeal with suspensive effect, if this was the case, against a divorce judgment, the content of such a judgment would not be enforceable, but added that previous decisions adopted in separation proceedings would not be enforceable either. In fact, the High Court of Justice stated:

“...the suspensive effect of the appeal ... makes it necessary to await the decision of this Chamber before applying the measures established by the judgment appealed against, if that judgment is upheld, or those established by that of this Chamber, if the [divorce] judgment delivered by the [first-instance] judge is reversed”.

The applicant submitted an appeal for the annulment of the proceedings, citing Article 10 of the Andorran Constitution (the right to court proceedings).

On 28 May 2009 the High Court of Justice dismissed the applicant’s appeal. It found that the applicant’s right to court proceedings had not been infringed by the decision of 23 April 2009, as the court had arrived at the only possible conclusion in the light of the rules of procedure in force. The relevant procedural rules forbade the enforcement of decisions being appealed against with suspensive effect and of decisions rendered in separation proceedings when a judgment of divorce had already been rendered in the case.

On 16 June 2009 the applicant lodged a constitutional appeal (recurso d’empara) with the Constitutional Court, founding the appeal on his right to court proceedings and to a fair hearing. He contended that the impossibility of enforcing the decision of 19 June 2008, already final, while an appeal was still pending in the divorce proceedings, had denied him a fair hearing.

On 23 July 2009, the High Court of Justice decided on the applicant’s appeal against the divorce judgment of 21 October 2008. The court dismissed all of the applicant’s grounds of appeal, instead upholding the judgment in its entirety.

On 12 October 2009 the Constitutional Court declared the applicant’s constitutional appeal inadmissible as devoid of constitutional content. The Constitutional Court stated that the decisions of the High Court of Justice had not been arbitrary and that that court had clearly and logically stated that the legal situation would not be definitely settled until the appeal lodged by the applicant against the judgment of divorce had been decided.

The applicant lodged a final appeal (recurso de súplica) with the Constitutional Court, which was dismissed on 21 December 2009 in a decision served on 20 January 2010.

II. RELEVANT DOMESTIC LAW

The relevant provisions of the Andorran Constitution read as follows:

Article 10

“Every person shall have the right to a court, to have a ruling founded in the law, and to the due process [of law] before an impartial tribunal established by law. (...)”

Article 14

“The right to privacy, honour and reputation shall be guaranteed. All shall be protected by law against unlawful interference in their family and private life.”

THE LAW

ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 8 OF THE CONVENTION

The applicant complained that the domestic courts had violated his right to family life because they had failed to take all necessary steps to ensure that he had contact with his children. He complained, in particular, that the High Court of Justice’s refusal to enforce the decision of 19 June 2008 pending the appeal against the divorce judgment had been wrongly adopted and had added to the vulnerability of his situation. He relied upon Articles 6 § 1 and 8 of the Convention, which as far as relevant provide as follows:

Article 6

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. (...)”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court observes that the applicant’s complaints under Article 6 § 1 of the Convention are closely linked to his substantive complaints under Article 8. The Court, being master of the characterisation to be given in law to the facts of the case (see Dolhamre v. Sweden, no. 67/04, §§ 80-81, 8 June 2010, and Saleck Bardi v. Spain, no. 66167/09, § 31, 24 May 2011), deems it appropriate to examine the applicant’s complaints under the latter provision (see Kutzner v. Germany, no. 46544/99, §§ 56 and 57, ECHR 2002-I; V.A.M. v. Serbia, no. 39177/05, § 115, 13 March 2007; and Z. v. Slovenia, no. 43155/05, § 130, 30 November 2010).

A. Admissibility

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The submissions of the parties

(a) The applicant

The applicant contended that the domestic courts had unlawfully prevented him from having contact with his children because they had not taken all necessary steps to ensure that he had such contact. He stressed that from 14 July 2006 - the date on which the separation judge had suspended his contact rights - until 2 April 2007 - the date on which the separation judge had finally appointed a psychologist - he had been prevented from contacting his children, the separation judge having failed to set up a psychological examination of his children in the interim. He further argued that from then on he had been prevented from having any contact with his children.

He stressed that he had lodged EUR 600 with the separation judge in security for the cost of the appointment of a psychologist, in conformity with the decision of 2 April 2007. He acknowledged that the sum he had deposited with the judge was less than that required by the decision. He further stated that the money had been refunded to him after the High Court of Justice had partially reversed the order mandating a psychological examination of his son on 19 June 2008.

The applicant highlighted that his inability to have contact with his children had been further exacerbated by the refusal of the High Court of Justice on 23 April 2009 to enforce, pending the divorce appeal, the decision taken by that same court on 19 June 2008 in the course of the separation proceedings to restore the contact schedule set up in the separation judgment in its entirety. He contended that at the time he had introduced his request for clarification, the decision of 19 June 2008 had become final and enforceable and therefore should have been enforced pending the appeal against the divorce judgment.

The applicant contended that the decisions of the High Court of Justice of 23 April 2009 and 28 May 2009 had resulted in a legal vacuum which had left his contact rights illusory, as both decisions had stated that neither the contact schedule set up in the divorce judgment nor that of the separation judgment could be enforced in practice.

(b) The Government

The Government did not accept that the Andorran courts had unduly prevented the applicant from having contact with his children. They argued that the State had complied with its positive obligations under Article 8 of the Convention. It stressed that all domestic decisions had been based on the best interests of the children, both judges and public prosecutors having had regard to the children’s psychological and emotional situation. In this regard, the different judges and courts that had been called upon to decide matters had ordered that a number of psychological examinations be carried out. Those examinations had always suggested that the care and custody of the children ought to be granted to their mother and that a further psychological examination or treatment of the children ought to be performed before their father should be granted physical contact with them.

The Government contended that the suspension of the contact schedule had not been definitive but had been made conditional on the psychological treatment of the children. In this connection, the Government stressed that the applicant had failed to deposit the sum required in security for the cost of carrying out the psychological examination, despite continuous efforts in this respect on the part of the judge in charge of the enforcement of the divorce judgment (“the enforcement judge”), and that as a result, the applicant should be the only one held responsible for his lack of contact with his children. The Government stated that the enforcement judge had even tried to have the applicant’s assets seized in order for the examination to be carried out, but to no avail. They produced evidence in this regard. The Government also stated that the applicant’s former wife had paid the amount required in security for her share of the cost of the psychological treatment of the children.

The Government also disputed that the alleged violation of the applicant’s right to family life had been the result of the domestic courts’ failure to enforce, pending the divorce appeal, the decision delivered by the High Court of Justice on 19 June 2008. In this respect, the Government stressed that the subsequent decision of that court of 12 February 2009 had been clear as to the unenforceability of that decision. The court had clearly stated that, since a judgment of divorce had already been delivered, the separation judgment and the other decisions adopted in the separation proceedings were deemed obsolete, only the divorce judgment being enforceable thereafter.

The Government further contended that the High Court of Justice had rightly dismissed the request for clarification introduced by the applicant. The court had provided the applicant with a duly reasoned decision in which it had clearly set out the reasons why neither the divorce judgment nor the decision of 19 June 2008 had been enforceable at the relevant time. The Government suggested that any further pronouncement by that court in relation to the contact schedule, which was to be enforced pending the divorce appeal, as part of proceedings relating to a request for clarification would have amounted to the court exceeding its jurisdiction. The applicant had inevitably had to await the judgment on his appeal against the divorce judgment.

Finally, the Government contended that the applicant had had the opportunity to put forward all arguments in his favour before impartial courts that had correctly applied the law.

2. Relevant principles

The Court notes that the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005).

Further, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. In both the negative and positive aspects of Article 8, regard must be had to the fair balance to be struck between the competing interests of the individual and of the community as a whole; in both situations the State enjoys a certain margin of appreciation (Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290; Diamante and Pelliccioni v. San Marino, no. 32250/08, §§ 174-175, 27 September 2011).

In relation to the State’s obligation to implement positive measures, the Court has held that for parents Article 8 includes a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunions (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII; and Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V). This applies not only to cases dealing with the compulsory taking of children into public care and the implementation of care measures (see, amongst others, Olsson v. Sweden (no. 2), 27 November 1992, § 90, Series A no. 250), but also to cases where contact and residence disputes concerning children arise between parents and/or other members of the children’s family (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299).

The obligation of the national authorities to take measures to facilitate contact by a non-custodial parent with children after divorce is not, however, absolute (see, mutatis mutandis, Hokkanen, cited above, § 58). The establishment of contact may not be able to take place immediately and may require preparatory or phased measures. The cooperation and understanding of all concerned will always be an important ingredient. While national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited, since the interests, as well as the rights and freedoms, of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention (see Hokkanen, cited above, § 58, and Olsson (no. 2), cited above, § 90).

What is decisive is whether the national authorities have taken all necessary steps to facilitate the execution of any order regulating contact that can reasonably be demanded in the specific circumstances of each case (see, mutatis mutandis, Hokkanen, cited above, § 58; Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited above, § 128; and Sylvester v. Austria, nos. 36812/97 and 40104/98, § 59, 24 April 2003).

In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who does not live with the child (see Ignaccolo-Zenide, cited above, § 102).

The Court further recalls the conclusion it reached in Glaser v. the United Kingdom (no. 32346/96, § 70, 19 September 2000) that active parental participation in proceedings concerning children is required under Article 8 of the Convention in order to ensure the protection of their interests and that when an applicant, as in that case, applies for enforcement of a court order, his conduct as well as that of the courts is a relevant factor to be considered.

3. The Court’s assessment

The Court observes that the contact schedule set up in the separation judgment remained suspended from 14 July 2006 to 2 April 2007. The Court further observes that the separation judge’s decisions of 14 and 20 July 2006 to suspend this contact schedule were based on psychological reports and were supported by the public prosecutor, and that the applicant was nonetheless authorised to maintain telephone contact with his children. The Court also notes that from 14 July 2006 until at least 19 December 2006 the applicant did not request, neither from the separation judge nor the divorce judge, the adoption of measures with a view to restoring physical parent-child contact, nor is there any evidence that the applicant complained before any domestic court of any breach by his wife of the authorisation granted to him to have telephone contact with his children.

The Court notes that the decision of 2 April 2007 partially restored the contact schedule put in place by the separation judgment. The contact schedule was restored in respect of the applicant’s daughter and a psychologist was appointed to examine his son. These measures were in force until 19 June 2008, the applicant having deposited only part of the sum required by the court order of 2 April 2007 in security for the cost of carrying out his son’s psychological treatment. There is no evidence that the applicant introduced any proceedings against his wife for breach of the contact schedule set up in respect of his daughter.

On 19 June 2008 the initial contact schedule set up in the separation judgment was restored but on 24 July 2008 it was suspended again until a psychological examination had been performed. The Court notes that the applicant appealed against this decision but that, while this appeal was still pending, a judgment of divorce setting up a new contact schedule was rendered on 21 October 2008.

The applicant appealed against the divorce judgment and, pending this appeal, he sought the enforcement of the decision that had been delivered by the separation judge on 19 June 2008. This took place within proceedings concerning a request for clarification as to which decision, the divorce judgment or the decision of 19 June 2008, was enforceable pending an appeal against the divorce judgment.

The Court notes that on 23 April 2009 the High Court of Justice indicated that the decision of 19 June 2008 was not enforceable because the applicant had already been granted a divorce; the competence to decide on parent-child contact matters falling thereafter to the court dealing with the divorce proceedings. The Court acknowledges the complexity of the situation, but it observes that the applicant was able to appeal against this decision and was served with reasoned decisions from both the High Court of Justice and the Constitutional Court from which it could be clearly inferred that the issue of his contact rights would not be definitely settled until the High Court of Justice had decided the appeal lodged by the applicant against the divorce judgment.

The Court further notes that there is no evidence that, upon bringing his appeal against the divorce judgment, the applicant requested that interim measures be ordered by the High Court of Justice.

In the light of the foregoing, the Court finds that in the particular circumstances of the case the domestic authorities did not fail to fulfil their positive obligations under Article 8 of the Convention. The Court appreciates that the domestic courts always had the best interests of the children in mind and relied on expert reports and other objective evidence when they decided to suspend the contact schedule set up in favour of the applicant. Re-establishing contact between father and children in the circumstances of the case required effort from all concerned persons, including the applicant, whose inactivity seems to have contributed to his lack of contact with his children. The Court draws attention to the fact that, from the documents provided, there is no evidence that following the first suspension of his contact rights the applicant sought to have them restored until five months later, that he never deposited the total sum required by the separation judge in security for the cost of the psychotherapeutic examination of his son and both parents, and that he did not voluntarily deposit the sum required by the judge dealing with the enforcement of the divorce judgment in security for the cost of carrying out the psychological treatment of his son, the enforcement judge even having tried to have the applicant’s assets seized for this purpose but to no avail.

Nor can the Court agree with the applicant’s argument that the High Court of Justice’s decisions of 23 April and 28 May 2009 denied him a fair hearing. As the court stated in its decisions of 19 June 2008 and 12 February 2009 and the divorce judge implicitly assumed in issuing the judgment of 21 October 2008, the competence to decide on parent-child contact once a divorce has been granted falls to the courts dealing with the divorce. In this connection, the Court notes that the applicant was able to appeal both of those decisions (which he did) and that the divorce judge and the appeal courts provided the applicant with reasoned decisions that cannot be deemed unreasonable or arbitrary. The divorce judgment introduced a new contact schedule in favour of the applicant that superseded all previous judicial decisions on the matter. This new contact schedule remained suspended as a result of the suspensive effect of the applicant’s appeal against it until the judgment of 23 July 2009 was delivered by the High Court of Justice, which upheld the divorce judgment in its entirety. There is no evidence, as has already been mentioned, that the applicant requested any interim measures from the High Court of Justice in his appeal against the divorce judgment or at any later stage prior to the High Court of Justice issuing a decision in his appeal. In these circumstances, the Court cannot conclude that the domestic courts failed to fulfil their positive obligations under Article 8 of the Convention, the applicant contributing to his lack of contact with his children.

Accordingly, in the light of the foregoing considerations, the Court considers that there has been no violation of Article 8 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been no violation of Article 8 of the Convention.

Done in French, and notified in writing on 11 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Alvina Gyulumyan
Deputy Registrar President

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