Family Visitation Rights and Positive Obligations of the State

Both cases involve relationships legally established and requiring visitation rights that Italian authorities refused to recognise.

Both claims touch on evolving social norms and the tension between familial support considerations and individuals' right to privacy and family life.

Both case proceedings examine the state's positive obligations to provide legal recognition for diverse family visitation rights.

Key features: The Court found violations in both cases of Article 8 regarding visitation rights and positive obligations of the State to protect effectively the rights of individuals under its sovereignty.

A.S. and M.S. v. Italy (Application No. 5885/18; February 16, 2023)

Principal Facts: The case concerns the alleged violation of the right to respect for the family life of A.S. ("the first applicant"), who also acts on behalf of M.S., his fifteen-year-old son ("the second applicant"). The applicants complain that the national authorities have not taken with the diligence required all the measures that could reasonably be required to allow the maintenance of the link uniting the interested parties and to facilitate the exercise by the first applicant of the right of visit as recognized by the decisions of the domestic court. Concerning the second applicant, the claim also raises the question of whether the national authorities have satisfied their positive obligations to protect the applicants’ psychological integrity, which would have been threatened both by the extremely conflictual relationship between his parents, by the fact that the relationship between the child and his mother would have been stifling, and by the psychological manipulation that the latter would have exercised on him.

Justification: The Court acknowledged that national authorities made efforts to restore the relationship between the applicants, resulting in positive developments and regular visits between the father and son. However, it found that prolonged limitations on contact, procedural delays, and tolerance of the mother’s obstruction, violated the applicants’ right to family life. Additionally, the delays negatively impacted the second applicant’s psychological well-being, constituting a violation of his right to privacy. This judgement has a separate opinion from two of the panel judges who raise questions of procedural justice. The opinion states that “although the solution chosen in the system of the judgment seems to us, in the light of the examination of all the documents in the file available to the Court, most in line with substantial justice, we have strong objections concerning the procedure followed by the Court.”

ECtHR findings: Violation of Article 8 found on both counts.

A and Others v. Italy (Application No. 79823/17; May 18, 2023)

Principal Facts: The case concerns an allegation of violation of the applicants' right to respect their family life due to the alleged impossibility for A, the first applicant, to exercise with regard to his children (B and C, the second and third applicants) the right of visit that internal courts have recognized him and thus establish a relationship with them.

Justification: The case involves a father A (born in 1990) and his two minor children, B (born in 2009) and C (born in 2011), where the father, part of a witness protection program due to his involvement in a mafia-related investigation, has an undisclosed place of residence. The children were born from the union of the first applicant and their mother, D. Due to being in detention, he was unable to recognise the children at birth. In 2016, he entered a witness protection programme , which led to the cessation of visits with his children when he returned to prison. The Court found that the non-execution of visitation rights resulted from procedural failures, de facto tolerance of the opposition by the mother and social services, and inadequate measures to establish effective contact. While the government argued that delays were justified due to witness protection measures for the applicants, the Court concluded that these failures were not directly linked to such circumstances. Ultimately, according to the European Court the national authorities did not take sufficient steps to uphold the applicants' rights to co-parenting and family life. 
ECtHR findings: Violation of Article 8. Further, the following sums to be payable by defendant State: EUR 8,000 in the first applicant, for moral damage; EUR 8,000 to each of the second and third applicants , for moral damage; EUR 50 in the first applicant, for costs and expenses; and EUR 5,000 to the curator, for costs and expenses.

Protection of Family Guardianships

These cases address the State's role in protecting parent-child relationships.

Both involve state decisions or inaction that impacted the relationship between family members.

Both case proceedings consider the "best interests of the individual under guardianship" principle and how it should be applied.

Both deliberations highlight the state's positive obligation to facilitate family reunification or maintain contact.

Common Factors: In both cases, the Court found that the Italian authorities failed to strike a fair balance between competing interests and did not take adequate measures to protect family relationships, with disproportionate or ineffective actions whilst upholding the state’s authority in the legal governance of public policy in the state.

C v. Italy (Application No. 18766/11; June 22, 2023)

Principal Facts: The claim lodged with the Court under Article 34 on behalf of child Miss C (‘the applicant’), a stateless person, on 21 September 2021,. The case concerns the Italian authorities' refusal to recognise the parent-child relationship established by a Ukrainian birth certificate between child C, born abroad as a result of surrogate motherhood (‘GPA’), and her biological father and her mother of intention. Article 8 of the Convention is at issue. On 16 September 2019, L.B. and E.A.M, the mother of intent and the biological father of baby C. applied to the civil registrar in the Italian town of V. for the transcription of the child's Ukrainian birth certificate into the civil register which was rejected on the ground that such a transcription was contrary to public policy. The city court dismissed the appeal because consideration of the child's best interests could not lead to disregard of the principle that GPA is incompatible with public policy. Their appeals were later denied, and the civil status office refused the partial transcription on the grounds that the prohibition on GPA could not be circumvented.

Justification: The Court found that the domestic authorities, given the above, by refusing to proceed to the transcription of the Ukrainian birth certificate of the applicant in the Italian civil status registers as long as it designates E.A.M as father, the defendant state (Italy) has not, in these circumstances, exasperated its margin of appreciation. As a result, there was no violation of Article 8 of the Convention on this point.

ECtHR findings: The court unanimously found no violation of Article 8 (right to respect for private and family life). Further, by majority , the court decided i, to be payable  EUR 15,000, for moral damage; 9,536 EUR  for costs and expenses were to be paid to the parents of Miss C.

Calvi and C.G. v. Italy (Application No.: 32610/16; August 31, 2023)

Principal Facts: Mr. Calvi (b.1956) represents himself and his elderly cousin C.G. (b.1930), who has lived in a care facility since October 2020 under legal protection. The claims of Mr. Calvi were to reinstate his guardianship of C.G., and C.G. raised claims for his right to freedom from detention within a nursing home where he didn’t desire to remain. Despite multiple assessments showing C.G.'s intact cognitive abilities for daily activities, he remained under guardianship after his 2018 petition to terminate protection was denied.

A 2020 social services report noted C.G.'s distress over losing financial autonomy, his estrangement from his sister, and his failure to recognize exploitation risks due to his generosity. He refused help with poor living conditions and continued cycling despite near-blindness.

A September 2020 expert assessment diagnosed C.G. with obsessive-compulsive personality disorder with depression, citing financial exploitation and severely inadequate living conditions. After previous interventions failed, authorities imposed C.G. into a nursing home placement in October 2020, noting his lack of healthcare and ongoing criminal proceedings against his caretaker.

Though C.G. initially agreed to temporary placement, he began a hunger strike in protest. In February 2021, the court denied Calvi's visitation request, stating C.G. hadn't expressed a desire for contact except upon returning home.

Justification: Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party allows only partial reparation to be made for the consequences of that violation, the Court shall afford just satisfaction to the injured party, It therefore unanimously declared the first applicant's complaints inadmissible while finding the second applicant's complaints admissible, determining that Article 8 of the Convention (right to respect for private and family life) had been violated regarding the second applicant.

ECtHR findings: Violation of Article 8 (right to respect for private and family life).

State Authority and Individual Privacy 

These two cases reflect Article 8 principles regarding state interference with private life.

Both cases involve state actions that created disproportionate violations of the rights of individuals.

Both situations examine procedural fairness, timeliness, and adequacy in state processes and decision-making.

Both claims address the balance between public interest and individual rights.

Both case decisions reflect on the limitations of state authority concerning individual autonomy.

Article 8 Connections: Under Article 8, both cases engage with the concept of proportionality and fair balance that undergirds its jurisprudence, particularly regarding respect for one's home (property restrictions) and aspects of private life (occupational illness compensation).

Locascia and Others v. Italy (Application No..: 35648/10; January 24, 2023)

Principal Facts: The case concerned nineteen applicants who claimed that the authorities’ poor management of the waste collection, treatment and disposal services in the Campania region and their failure to take protective measures to minimise or eliminate the effects of pollution from a landfill site located between the municipalities of Caserta and San Nicola La Strada, violated the applicants’ rights under Articles 2 and 8 of the Convention. The main circumstances concerning waste management in Campania from 1994 to 2009 are described in the judgment of Di Sarno and Others v. Italy (no. 30765/08, §§ 10-18, 20-34 and 36-51, 10 January 2012).

Justification: The Court found that there has been a violation of Article 8 of the Convention as regards management of the waste collection, treatment and disposal services in the period from 11 February 1994 to 31 December 2009; no violation as regards management of the waste collection, treatment and disposal services in the period from 1 January 2010. However, the Court observed that violations were found in its substantive aspect as regards the Italian authorities’ failure to take the requisite measures to protect the applicants’ right to private life in connection with the environmental pollution caused by “Lo Uttaro” landfill site. The concerned state was held to pay EUR 5,000 to the applicants, jointly, plus any tax that may be chargeable to them.

ECtHR findings: violation of Article 8 of the Convention as regards management of the waste collection, treatment and disposal services in the period from 11 February 1994 to 31 December 2009. 

Giuliano Germano v. Italy (Application No.: 68254/18, November 14, 2023)

Principal facts: In November 2009, following an official investigation, the Police Authority chief (questore) issued a formal warning to the applicant after his spouse filed a complaint and subsequently left the marriage. The spouse's allegations detailed a pattern of harassment directed not only at her but also extending to their child's caretaker and shared social connections. Specifically, she claimed the applicant was attempting to exert undue control over her personal affairs while creating an environment of isolation and intimidation. The official warning instructed the subject to maintain lawful conduct and cease the behaviors that had prompted the administrative action.

The applicant contested this measure in January 2010 by filing an appeal with the Regional Administrative Court. This court ruled in his favor, determining that his procedural rights to participation and defense had been violated during the investigation process. Based on these procedural deficiencies, the court invalidated the police warning that had been issued against him.

However, in July 2011, Italy's highest administrative court, the Council of State (Consiglio di Stato), reversed this decision after reviewing an appeal submitted by the Ministry of the Interior. The Council overturned the lower court's judgment and reinstated the former police warning, affirming its validity despite the procedural concerns raised in the first appeal.

Justification: The Court highlighted serious deficiencies in the judicial review process. Despite the questore's failure to provide sufficient justification for the caution, the Consiglio di Stato merely affirmed the measure's legitimacy without independently evaluating the evidence. This fell short of the "sufficient scrutiny" standard established in case law.

The Consiglio di Stato neglected to examine whether the questore had demonstrated specific facts supporting the claim that the applicant posed a danger to his wife. Instead, it conducted only a formalistic review of the decision. Consequently, the judicial authorities failed to adequately assess the factual basis, legality, necessity, and proportionality of the measure.

The Court concluded that multiple procedural failings violated the applicant's rights: his significant exclusion from the decision-making process without demonstrated urgency; authorities' failure to provide relevant and sufficient justification; and the limited safeguards offered by the Consiglio di Stato's superficial review. These failures meant the applicant was denied the adequate legal protection against abuse guaranteed under democratic rule of law principles. Therefore, the interference with his right to private and family life was not "necessary in a democratic society."

ECtHR findings: Violation of Article 8, and  EUR 9,600 in respect of non-pecuniary damage to be payable to claimant.

Conclusions

The ECtHR’s judgements reflect a careful balancing act between public interests and upholding effective respect for family life

In the first case (A.S. and M.S. v. Italy), the Court found violations by Italy of Article 8 for failing to take the necessary measures to ensure contact arrangements, and preservation of a parent-child relationship. In a similar case (A and Others v. Italy), the Court ruled that Italy had violated Article 8 due to its lack of support in promoting positive obligations of the State to implement appropriate measures to enable the applicants to establish a relationship and to enforce visitation rights.

Two family guardianship cases revealed additional Article 8 dimensions. In C v. Italy, the Court found no violations when authorities refused to transfer the birth registration of Child C from Ukraine to a city registry in Italy. Conversely, in Calvi and C.G. v. Italy, the Court condemned Italy for  C.G.’s forced detention in a nursing home as the measure, despite it had pursued the legitimate aim of protecting C.G.’s welfare in the broad sense, it had not been either proportionate or adapted to his individual situation.

The property restrictions case (Locascia and Others v. Italy) and the delayed administrative proceedings case (Giuliano Germano v. Italy) both illustrated how state actions and restrictions can disproportionately burden private life and home interests protected under Article 8.

All together, these six cases illustrate key principles in Article 8 jurisprudence: 

• Positive obligations - States must not only refrain from arbitrary interference but must take positive steps to ensure effective respect for family life 
• Procedural safeguards - Interferences with family life require robust procedural protections, timely decision-making, and ongoing assessment of changing circumstances.
• Fair balance - The Court consistently applies a proportionality principle, weighing the general interest against the impact on individual rights
• Margins of appreciation - The Court acknowledges that states have some discretion in moral and ethical concerns, but this margin narrows when core aspects of identity or particularly important facets of life are at stake.
• Effectiveness principle - Rights must be practical and effective, not theoretical or illusory, requiring genuine enforcement of court decisions affecting family life.

These cases highlight various aspects of human rights protection in Italy, particularly focusing on family rights, property protection, and procedural fairness. They sample well the diverse reasoning of the European Court of Human Rights in addressing Article 8 violations.