EHRM, 06-12-2005, nr. 14600/05

On 20 April 1997 Mrs Eskinazi married Mr Chelouche. The civil wedding took place before the French consular authorities in Tel Aviv. A Jewish wedding ceremony also took place in the same city.

The couple apparently intended to settle permanently in Paris, although Mr Chelouche's professional activities often kept him in Israel and Mrs Eskinazi often went to Turkey, either for work purposes or to visit her family.

As she never sought to acquire Israeli nationality, the applicant used to stay in Israel on three-month tourist visas issued by the Israeli consulate in Turkey.

On 27 January 2000 Miss Chelouche was born in Tel Aviv. The couple continued travelling between the three countries, however, with the child always being accompanied by her mother.

As time went by the couple's relationship deteriorated.

On 8 April 2004 the applicants went to Turkey to celebrate the Pessah. The plan was that they would stay there for ten days. Mrs Eskinazi put off the return date a number of times, however, and ultimately decided not to come back.

A report drawn up on 22 October 2004 by the social worker responsible for overseeing the parental visits noted that Mrs Eskinazi had made efforts to ensure that the child's meetings with her father were conducted smoothly and in a warm atmosphere. A second report, filed in the proceedings on 25 October 2004, on the date when the judgment at first instance was delivered, still referred to a harmonious relationship between the child and her father.

However, the many further reports drawn up by social workers after that judgment were increasingly critical of the father.

On 27 February 2005, when visiting the child at Mrs Eskinazi's flat, Mr Chelouche allegedly attacked the social worker present, insisting that he wanted to talk to his daughter alone. He allegedly also caused damage in the flat. A criminal complaint lodged in connection with those events led to the institution of criminal proceedings, which are still pending.

It appears that relations deteriorated still further after that incident, and on 7 May 2005, at Mrs Eskinazi's request, a second indictment was filed against Mr Chelouche.

Following a series of psychiatric examinations carried out in September and October 2005, in the appropriate departments of two university hospitals, Miss Chelouche was diagnosed with post-traumatic stress disorder. She has been taking medication since then.

The Court notes at the outset that it is not disputed in the present case that, for Mrs Eskinazi and her daughter Caroline, the continued mutual enjoyment of each other's company constitutes a fundamental element of family life within the meaning of the first paragraph of Article 8 of the Convention, which is therefore applicable here (see Maire v. Portugal, no. 48206/99, § 68, ECHR 2003-VII).

It would also appear undisputed that in relation to both applicants the proceedings complained of involved an ‘interference’ within the meaning of paragraph 2 (see McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 57, §§ 86 and 87), it being understood that the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition (see, for example, Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 48, ECHR 2003-V, and Sylvester v. Austria, nos. 36812/97 and 40104/98, § 55, 24 April 2003).

The applicable principles are comparable and must be applied in accordance with the principles of international law, in particular those concerning the international protection of human rights (see Streletz, Kessler and Krenz v. Germany[GC], nos. 34044/96, 35532/97 and 44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom[GC], no. 35763/97, § 55, ECHR 2001-XI). No issue of hierarchy has to be addressed.

The obligations imposed under Article 8 of the Convention must be interpreted in the light of the requirements of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (see Iglesias Gil and A.U.I., cited above, § 51, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, ECHR 2000-I) and the Convention on the Rights of the Child of 20 November 1989 (see Maire, cited above, § 72).

In the instant case the Court notes, moreover, that the decision of the Sarıyer Family Affairs Court was based on the provisions of the Hague Convention, incorporated into Turkish law and applied with the aim of protecting Miss Chelouche, the lawfulness of which aim has moreover not been challenged (see Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000-IV).

It remains to be determined whether the above-mentioned interference was ‘necessary in a democratic society’ within the meaning of paragraph 2 of Article 8.

What is decisive is whether the necessary fair balance was struck between the competing interests of the child, her two parents and the interests of public policy, within the limits of the margin of appreciation enjoyed by the States in the area (see Sylvester and Maire, cited above, ibid.). In that connection it should be pointed out that whilst Article 8 contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect for the interests safeguarded by Article 8 (see McMichael, cited above, ibid.).

In the present case Mrs Eskinazi left Israel, together with her daughter, on 8 April 2004 on a visit to Turkey. She put off her return a number of times before deciding not to go back to Israel.

The Court observes that, under Article 3 of the Hague Convention, the removal or the retention of a child is to be considered ‘wrongful’ where it is in breach of rights of custody attributed to a person under the law of the State in which the child was ‘habitually resident’ immediately before the removal or retention.

With regard to the rights of custody of Miss Chelouche, which certainly included the right to determine her place of residence, it should be pointed out that under the Hague Convention these rights may arise, inter alia, by operation of law. This was indeed the case here, since on the date when the child was removed it is not disputed that Mrs Eskinazi and Mr Chelouche exercised jointly, under Israeli law, parental responsibility and rights of custody (compare Guichard v. France (dec.), no. 56838/00, ECHR 2003-X).

The refusal by Mrs Eskinazi, who had joint custody rights, to return the child to Israel, in breach of the rights of Mr Chelouche, the other person with joint custody rights, undoubtedly brought the case within the scope of the Hague Convention, notwithstanding the father's initial consent to the visit to Turkey (consent explained by the fact that the visit was meant to last ten days, though it in fact went on for longer).

Accordingly, under Articles 6 and 7 of the Hague Convention, the Central Authorities had to co-operate with each other and promote co-operation amongst the competent authorities in their respective States, it being understood that the obligations on the Turkish authorities in the present case were not extinguished following the decision of 30 April 2004 awarding Mrs Eskinazi custody of her daughter in case no. 2004-375. That interim decision was, moreover, subsequently set aside.

Thus, on 10 June 2004 the Israeli Central Authority applied to its Turkish counterpart for the return of Miss Chelouche, basing its request, inter alia, on a decision of the Tel Aviv Rabbinical Court that the child had been ‘unlawfully’ removed from her place of ‘habitual residence’.

In the proceedings instituted in that regard the Sarıyer Family Affairs Court assessed the credibility of the evidence submitted by the parties, including witness evidence, to ensure that there was a fair trial. Basing its decision on, among other things, the official records produced by the Israeli and Turkish Central Authorities — unrefuted by the applicant, moreover — the Turkish court was satisfied that, prior to her removal, Miss Chelouche had spent most of her life in Israel, which should therefore be regarded as her ‘habitual residence’ for the purposes of the Hague Convention.

Admittedly, before reaching that conclusion the court had also taken account of the decision of the rabbinical court, which was strongly contested by Mrs Eskinazi. It was empowered to do so, however, under the Hague Convention, which allows courts to rely on foreign court judgments directly without any need for a registration procedure. Moreover, it is apparent from the judgment of 25 October 2004 that the conclusions of the rabbinical court — which, moreover, did not concern the merits of custody rights in respect of Miss Chelouche — were used merely as factual elements, for the purposes of Article 13, in fine, and Article 14 of the Hague Convention. It follows that the applicant's complaint that the decision of the rabbinical court was delivered in her absence has no decisive weight.

Having regard to all the evidence, the Court is not aware of any circumstance that might call into question the findings of fact of the national authorities (see Klaas v. Germany, judgment of 22 September 1993, Series A no. 269, p. 17, §§ 29–30) and considers that, on 10 June 2004, the date of the application for the child's return lodged by the Israeli Central Authority, Miss Chelouche had been wrongfully removed within the meaning of the Hague Convention.

Having reached that conclusion, the Court points out that its examination must now be strictly limited to assessing the circumstances prior to 10 June 2004, including in particular those referred to in relation to the alleged unsuitability of one or other of the parents. The order for the child's return under examination here is a purely interim measure and does not prejudge the merits of the issue of custody, which the Hague Convention does not seek to establish, still less the Court.

Relying on Articles 13 (b) and 20 of the Hague Convention, the first applicant complained that insufficient consideration had been given to her daughter's best interests.

The Court agrees with the first applicant that the concept of the child's best interests should be paramount in the procedures put in place by the Hague Convention. However, it should not be overlooked that among the constitutive elements of that concept is also the fact of the child not being removed from one of its parents and retained by the other, who rightly or wrongly considers that their right over the person of the child is as important or more important. In that connection the Court reiterates that Recommendation 874 (1979) of the Parliamentary Assembly of the Council of Europe states: ‘Children must no longer be considered as parents' property, but must be recognised as individuals with their own rights and needs’.

Coming back to the facts of the case, the Court notes that the Turkish courts finally concluded that the child's return to Israel would not expose her to physical or psychological harm or place her in an intolerable situation and/or a situation incompatible with her fundamental rights and freedoms.

The Court does not see any reason, in the light of Article 13 (b) of the Hague Convention, to believe that the Sarıyer Court and the Court of Cassation drew arbitrary conclusions from the arguments freely submitted to them in the adversarial proceedings and at the hearings before the two levels of jurisdiction. The judgments of the national courts are sufficiently reasoned on this point.

In the instant case it is sufficient for the Court to point out that a situation that might appear unstable in certain parts of Israel does not suffice, on its own, to claim, under the Convention, that once Miss Chelouche returned to the country, accompanied by her relatives, her personal situation would give greater cause for alarm than that of other children living in Israel, especially as the Eskinazi-Chelouche family had lived in the country for years without having cause for concern and the child herself was born there.

There is therefore nothing to suggest that the decision-making process leading to the adoption of the impugned measures by the domestic court was unfair or failed to involve the first applicant to a degree sufficient to protect her interests (see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, pp. 28–29, §§ 64–65; McMichael, cited above, pp. 55 and 57, §§ 87 and 92; and Tiemann, cited above).

In that connection the Court does not accept the argument based on the Sarıyer prosecutor's participation in the proceedings, particularly as the first applicant, who was represented by several lawyers, never suggested that she had been denied knowledge of the grounds submitted by the prosecutor or the possibility of disputing them. As regards the complaint that Miss Chelouche was not heard, the Court reiterates that it is not its task to substitute its own assessment of the facts and the evidence for that of the Turkish courts regarding the adequacy of such a delicate process or to review the interpretation and application of the provisions of international conventions (in the present case Article 13 of the Hague Convention and Article 12 § 1 of the Convention on the Rights of the Child), other than in cases of an arbitrary decision. The applicant has not substantiated any such allegation; neither has one been made out on the basis of the material before the Court. Having regard to the child's age, the Court finds it plausible that it would not have assisted the court to hear her.

There remains, however, the issue of respect for fundamental rights and freedoms within the meaning of Article 20 of the Hague Convention, which presents a number of particularities.

In that connection the applicant drew attention to the features of the rabbinical courts in Israel, to which she and her daughter would have to submit if the disputed measure were executed. She complained of the geţ requirement and the ne exeat measures provided for under Israeli law and also of the discriminatory procedures and religious considerations which would work to her disadvantage regarding the determination of the rights relating to her daughter's personal status.

Despite their undeniable relevance in the light of the procedural requirement inherent in Article 8, the Court nonetheless considers that it should examine these arguments under the head of Article 6 § 1 of the Convention (see, mutatis mutandis, Sylvester, cited above, § 76, and McMichael, cited above § 91), a provision which — in the special circumstances of the instant case — requires it to review whether Mrs Eskinazi or Miss Chelouche risk being subjected to ‘a flagrant denial of justice’ in Israel, a State not party to the Convention.

After that final examination, the Court will rule on the application as a whole.

The Court recalls that in the present case neither the Sarıyer Family Affairs Court nor the Court of Cassation dealt with the issues relating to the exercise of parental rights or to Miss Chelouche's personal status. They merely noted, in the light of all the evidence in the case, that on the date of the child's removal the father had joint custody of her and that the removal could not but be regarded as ‘unlawful’ within the meaning of the Hague Convention.

That manner of considering things tallies with the aim pursued by the Hague Convention, to which the Court subscribes: preventing the law applicable to such questions from being unilaterally circumvented by one of the parents, in breach of the legitimate rights of the other. At the appropriate time, the dispute relating to the merits of the rights in issue will have to be brought before the competent judicial authorities of the State where Miss Chelouche is deemed to be habitually resident.

It is not in any way the Court's task to address the determination of those rights, for the simple reason that Israel is not a party to the Convention and, moreover, the application was lodged against Turkey.

Admittedly, the Court has previously acknowledged that where the courts of a State party to the Convention are required to enforce a judicial decision of the courts of a country that is not a party, the former must duly satisfy themselves that the proceedings before the latter fulfilled the guarantees of Article 6, such a review being especially necessary where the implications are of capital importance for the parties (see Pellegrini v. Italy, no. 30882/96, § 40, ECHR 2001-VIII).

In the instant case, although the stakes involved for Mrs Eskinazi and her daughter are clearly of capital importance their situation is hardly comparable to that of Mrs Pellegrini, whose complaint was about proceedings that had ended with a decision of the Vatican courts declaring her marriage definitively null and void and a decision by the Italian courts declaring the decision enforceable.

In the present case, with no proceedings concerning the applicants’ interests having yet been disposed of by a judicial decision in Israel, the Turkish authorities had to lend their assistance with Miss Chelouche's return unless objective factors caused them to fear that the child and, if applicable, her mother risked suffering a ‘flagrant denial of justice’ (see, mutatis mutandis, Mamatkulov and Askarov v. Turkey[GC], nos. 46827/99 and 46951/99, § 88, ECHR 2005-I; Einhorn v. France (dec.), no. 71555/01, ECHR 2001-XI; Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, p. 34, § 110; and Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 45, § 113).

The Convention does not require the Contracting Parties to impose its standards on third States or territories, since this would thwart the current trend towards strengthening international cooperation in the administration of justice, a trend which is in principle in the interests of the persons concerned (see Drozd and Janousek, cited above, § 110) and would risk turning international instruments into a dead letter, to the detriment of the persons they protect.

That being so, a ‘denial of justice’ is prohibited by international law (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 17, § 35). As part of its international rights and obligations, Turkey must ensure that this principle is respected with regard to its reciprocal commitments with Israel, both countries belonging to the same legal community defined by conventions they have signed, such as the Hague Convention and the Convention on the Rights of the Child. Mention should again be made of the International Covenant on Civil and Political Rights, which has been ratified both by Israel and by France, a country of which Miss Chelouche is also a national.

Having regard to the above-mentioned principles, the Court has examined all the available material, primarily with reference, as is right and proper, to the circumstances of which the Turkish authorities had or ought to have had knowledge at the time when Miss Chelouche's return was requested of them.

It notes first of all that even though Israel is not a Contracting Party to the Convention, the rabbinical courts form an integral part of the judicial system in the country and are ‘tribunals established by law’ within the meaning of Article 6 § 1 of the Convention. It reiterates that a tribunal is characterised in the substantive sense of the term by its judicial function: ‘determining matters within its competence on the basis of rules of law and after proceedings conducted in a prescribed manner; it must also satisfy a series of other conditions, including the independence of its members and the length of their terms of office, impartiality and the existence of procedural safeguards’ (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 99, ECHR 2000-VII). In the absence of criticism based on those requirements, the applicant's general argument based on the ‘religious nature’ of the rabbinical courts is not decisive, the Court having never given a ruling to that effect (see, mutatis mutandis, Pellegrini, cited above, and Leo Kohn v. Germany (dec.), no. 47021/99, 23 March 2000). The Court does not have the particular task of assessing whether a religious court is in substance and in abstracto incompatible with the Convention, and particularly Article 6. It will only examine whether the proceedings before a particular court — as before any tribunal moreover — complied with the requirements of Article 6. There is nothing to suggest in the present case that the rabbinical courts have breached or would breach those requirements.

That said, the Court is not indifferent to the problems referred to by the applicant and which transpire from certain documents and examples of case-law produced by her. These documents confirm that issues giving cause for concern, related to the features of the proceedings before those courts — particularly regarding the religious-based notions by which they are inspired — may arise.

That being so, the Court also takes note of the information provided by the Israeli ministerial authorities, and, in so far as this has not been disputed, it notes the assurance given regarding the conformity of the procedural guarantees afforded by the rabbinical courts with the relevant principles of international law. The Court finds confirmation of this in certain decisions delivered by the rabbinical courts, it being understood that, for the purposes of the present case, that assurance must be seen as a commitment by the Israeli authorities towards Turkey.

Whilst the first applicant rightly pointed out that the information provided by the Israeli authorities did not explicitly address all the questions raised in the present case, the Court for its part does not consider it necessary to resolve the entire dispute here, which, it must be repeated, is closely bound up with a choice made by Mrs Eskinazi when she agreed to contract a religious marriage in Tel Aviv — that choice resulting in the rabbinical courts having exclusive jurisdiction — in addition to the civil marriage which had been contracted in the same town before the French consular authorities.

However, out of concern to reply to the applicants, the Court considers that it should make a number of observations.

Firstly, the Turkish Government cannot be accused of acting in bad faith in this case regarding their duty to ensure that Israel complied with international law; nor can it be argued that Israel is not a State governed by the rule of law. Having regard to the respective arguments submitted by the parties, there was no basis on which the Turkish authorities could, at the material time, have found any ‘substantial grounds for believing’ that the denial of justice feared by Mrs Eskinazi was ‘flagrant’, without going into the details of a broad debate on the specific features of the Israeli judicial system. It was patently not for the respondent State to determine such an issue before authorising Miss Chelouche's return, no such duty arising from Turkey's obligations under the Convention (see, mutatis mutandis, Einhorn, cited above).

Secondly, the Court sees no reason to doubt Mr Chelouche's sincerity when, at the hearing, he stated that he was in favour of the proceedings being conducted smoothly and did not have any intention of hindering them by refusing to grant the traditional geţ, or by seeking a further prohibition on the first applicant leaving Israeli territory.

Lastly, there is no evidence to suggest that possible proceedings in Israel would lead to a hasty decision without a proper examination of all Mrs Eskinazi's claims. Admittedly, this examination may ultimately lead to a decision unfavourable to her, in which case she will, in the final instance, be able to apply to the Israeli Supreme Court in its capacity as High Court of Justice. It is not disputed in the present case that the Israeli Supreme Court has a power of review of the decisions of the rabbinical courts such as to prevent a flagrant denial of justice. Admittedly, it does not appear that the Israeli Supreme Court can reassess matters of pure fact. However, that limitation is also a feature of some court systems of the member States of the Council of Europe that the Court has already had occasion to examine (see, for example, Civet v. France[GC], no. 29340/95, ECHR 1999-VI). The Court does not therefore see any reason to fear that, at the appropriate time, the Israeli High Court of Justice will be content with a reasoning that denies the fundamental laws of its country and the principles of international law.

In the light of the foregoing, the Court is not persuaded that the Turkish authorities had sufficient material in their possession to suggest that the possible shortcomings in proceedings that the applicants might face in Israel might amount to a ‘flagrant denial of justice’. Furthermore, while it is true that the outcome of such proceedings might not be subject to review at the European level, the Court notes nonetheless the object and scope of the obligations incumbent on the State of Israel under other international instruments of human rights protection in force in that State towards the countries of which Mrs Eskinazi and Miss Chelouche are nationals, and in particular the Hague Convention itself, the International Covenant on Civil and Political Rights and the United Nations Convention on the Rights of the Child (see ‘International texts’ under ‘Relevant domestic international law and practice’, above).