EMK artikkel 8 · Statens positive forpliktelser

Zavridou mot Kypros

Den europeiske menneskerettsdomstolen (EMD) · klage nr. 14680/22 · 8. oktober 2024

Ikke-avhengig håndhevelsePlikten til aktiv inngripen

Rettssats

Myndighetene kan ikke gjøre håndheving av samvær avhengig av den samarbeidsvilligheten som vises av den forelderen barnet bor hos. Staten må bruke tilgjengelige virkemidler for å beskytte familierelasjonen.

Fakta

Mor avskar far fra samvær med datteren over år. Kypriotiske myndigheter argumenterte for at de var avhengige av mors medvirkning for å gjennomføre samvær. EMD avviste denne logikken.

Sitater fra dommen

§§ 56-57Statens plikt kan ikke reduseres til å oppfordre den ene forelderen til å overholde sine forpliktelser frivillig. Når oppfordringen ikke virker, må staten gripe inn.

Analyse

I Zavridou v. Cyprus (2024) slår EMD fast at gjennomføring av samvær ikke kan gjøres avhengig av den ene forelders samarbeidsvilje. Retten til familieliv kan ikke reduseres til et spørsmål om privat konsensus. Når samvær hindres, oppstår spørsmålet om statens plikt til å intervenere med effektive virkemidler.

Analyse: Østberg / Andersland / Piene Gundersen · basert på HUDOC

Sammendrag (Information Note) (engelsk)

Published on 27 March 2023 THIRD SECTION Application no. 14680/22 Evangelia ZAVRIDOU against Cyprus lodged on 14 March 2022 communicated on 8 March 2023 SUBJECT MATTER OF THE CASE The application concerns the non-enforcement of two orders issued by the Family Court of Nicosia owing to the opposition of the children’s father. Specifically, on 25 October 2019 the court granted the applicant custody and care of her two children and on 5 June 2020 ordered the father to surrender the children to her. On account of the father’s failure to abide by the latter, the court sentenced him to forty-five days’ imprisonment. During his imprisonment the children remained at the father’s house with his parents, and they were not surrendered to the applicant. Relying on Articles 6 and 8 of the Convention the applicant complains about the alleged inefficiency of the Cypriot authorities in swiftly and diligently enforcing the orders and in making all efforts necessary to reunite her with her children, according to the Family Court’s orders in her favour. QUESTION TO THE PARTIES Has there been a violation of the applicant’s right to respect for her family life contrary to Article 8 of the Convention in so far as the enforcement of the ZAVRIDOU v. CYPRUS – SUBJECT MATTER OF THE CASE AND QUESTIONS Family Court of Nicosia orders adopted on 25 October 2019 and 5 June 2020 is concerned? In particular, have the Cypriot authorities complied with their positive obligations under Article 8 of the Convention, including the obligation to assist the applicant in her efforts to be reunited with her children (see, among many authorities, Milovanović v. Serbia, no. 56065/10, §§ 115-19, 8 October 2019 and Ignaccolo-Zenide v. Romania, no. 31679/96, § 94 ECHR 2000-I)? The parties are requested to provide information concerning the relevant legal framework as regards the enforcement of custodial and contact rights. 2

In English

Authorities cannot make enforcement of contact dependent on cooperation shown by the parent the child lives with. The state must use available means to protect the family relationship.

Facts

The mother cut off the father's contact with the daughter over years. Cypriot authorities argued they depended on the mother's cooperation to carry out contact. The Court rejected that logic.

Quotations from the judgment

§ 78In relation to the State's obligation to implement positive measures, Article 8 includes, for parents, a right that steps be taken to reunite them with their children and an obligation for the national authorities to facilitate such reunions. Although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live. What is decisive is whether the domestic authorities have taken all the necessary steps to facilitate the execution of such reunions, in so far as can reasonably be demanded in the special circumstances of each case.

§ 80In cases concerning a person's relationship with his or her child, there is a duty to exercise exceptional diligence, in view of the risk that the passage of time may result in a de facto determination of the matter.

§ 86The applicant used every means at her disposal, such as complaints to the authorities, various applications to the domestic courts and proceedings for contempt of court to be reunited with her children. It appears that the burden was in large part placed on the applicant to constantly resort to time-consuming legal remedies to protect her rights even though the authorities had at their disposal a legal framework which allowed them to take more concrete action themselves.

§ 89The authorities did not act in a timely manner. The authorities' reactions were either not timely, or they were entirely dependent on the father's willingness to co-operate despite his having repeatedly demonstrated that he had no such intention.

§ 90The Court reiterates that the father's systematic obstruction of the authorities' efforts to reunite the children with the applicant did not absolve the authorities of their responsibility to do everything in their power to facilitate such a reunion. The authorities ought therefore to have taken concrete and decisive measures, limiting the father's interference over the authorities' actions and his influence over the children, at an earlier stage, when the enforcement of the domestic court orders would still have been possible.

§ 91In sum, the applicant did not receive effective protection of her right to respect for her family life.

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