CASE OF KOSMOPOULOU v. GREECE
Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
8. The applicant was born in 1965 and lives in Athens. 9. On 25 April 1987 she got married and on 23 January 1988 gave birth to a daughter. 10. On 19 November 1996 the applicant left the matrimonial home and went to England, leaving her daughter with her husband. 11. On 6 February 1997 the applicant's husband lodged an interlocutory application with the Athens Court of First Instance for an interim-custody order. On 1 March 1997 the applicant filed a cross-application for interim custody. 12. On 2 May 1997 the Court of First Instance made an interim order granting custody of the child to the father (judgment no. 11208/1997). 13. On 12 January 1998 it made a final order granting the father custody (judgment no. 1/1998). An appeal by the applicant against that judgment was dismissed by the Athens Court of Appeal on 29 February 2000 (judgment no. 1559/2000). The applicant did not appeal on points of law against that judgment. 14. In the meantime, on 9 and 23 May 1997 the applicant and her ex-husband each applied to the Athens Court of First Instance for interim orders concerning access. The hearing of the applicant's application, which was initially scheduled for 28 May 1997, was adjourned to 9 July 1997 so that it could be examined with the father's application. 15. On 6 June 1997 the applicant made a further application, seeking an order requiring her ex-husband to bring the child to her house. On the same day the judge issued an order granting the applicant interim access every Saturday from 10 a.m. to 2 p.m. On Saturday 7 June 1997 the applicant's former husband failed to comply with that order. On 9 June 1997 he asked the court to set aside the judge's interim order, which it did on 10 June 1997 (judgment no. 15142/1997). 16. In a medical report dated 26 June 1997, three psychologists who had examined the child and her father but not the applicant stated that the child was suffering from “physical negligence and abandonment by her mother, a denial of love and affection, and indifference to her achievements and the activities she was involved in”. They concluded that keeping “a distance from her mother temporarily would contribute to suppressing the child's negative feelings”. 17. After the hearing on 9 July 1997, the Court of First Instance delivered its judgment on 30 July 1997. In particular, it held: “On 19 November 1996, after the breakdown of the marital relationship between the parties, [the applicant] left the matrimonial home...and settled temporarily in Bristol, England, without giving any sign of life until 17 December 1996. She did not contact her daughter, who was constantly in tears and desperate to find her mother, being unable to understand her long absence. When the child visited her mother on 17 December 1996 at the hotel where she was staying in Bristol, [the applicant] left her alone in the room and went away, leaving the child with feelings of intense fear and insecurity ...It should also be noted that in early May 1997 the applicant, who had already returned to Greece and was accompanied by her mother, visited her daughter's school in order to meet her teachers; when her daughter saw her in the playground she ran away terrified, calling out for her teachers to help her and protect her from her mother. On the other hand, the applicant has a university education, moral principles and a high standard of living; for the whole period when they lived together as a family until the moment she left the matrimonial home, [the applicant] showed an interest in and took care of her daughter, whom she undoubtedly loves excessively.” Taking into account the above circumstances and the interest of the child, the court decided that the child should stay with her mother once a week and for some days during the school holidays (judgment no. 21171/1997). 18. On 2 August 1997 the applicant spent the day with her daughter. 19. On 6 August 1997 the applicant's former husband asked the court to review its decision in judgment no. 21171/1997. The hearing took place on 8 August 1997. On 9 August 1997 the child was brought to her mother's house, but refused to stay with her. On 11 August 1997 the court confirmed the previous arrangement for visiting rights but reduced the number of days the child could spend with her mother during the summer holidays, so as to take into account holiday plans that had been made by the child's father and her paternal grandparents. The court found that the applicant was a highly educated person “with moral principles” and that “she loved her daughter” (judgment no. 22372/1997). 20. On 23 August the child was brought to the applicant's house but again refused to stay with her. The applicant and her daughter were then taken to the Syntagma Square Police Station, where, under unspecified circumstances, the applicant kicked her daughter and tore out clumps of her hair. 21. On 27 August and 23 September 1997 the applicant's former husband sought a review of judgments nos. 21171/1997 and 22372/1997. He also asked for the applicant's visiting rights to be provisionally suspended. The judge granted his applications and suspended the applicant's visiting rights without hearing prior representations from the applicant. 22. On 24 September 1997 the applicant appealed against the order suspending her visiting rights. On 29 September 1997 the judge dismissed her appeal (judgment no. 26451/1997). 23. On 11 December 1997 the Court of First Instance stated that it was essential for the child to have contact with her mother and that the father was under a duty to facilitate such contact. It found that the child's reluctance to see her mother was due to the behaviour of her father, who had involved the child in his own disputes and problems with the applicant (judgment no. 34780/1997). 24. On 16 December 1997 the applicant issued a summons against her former husband requiring him to comply with judgment no. 34780/1997, but to no avail. 25. In the meantime, the applicant asked the juvenile-court public prosecutor to intervene in order to facilitate communications with her daughter. On 30 December 1997 the Public Prosecutor referred the matter to the Psychiatric Department of the Athens Children's Hospital, where a psychiatrist examined both parents and the child. In her report dated 25 June 1998, the psychiatrist noted: “It has been difficult to see the mother who has been cancelling the appointments” and stated: “If [the child's] psychological problems are to be alleviated, it is necessary for her to be reunited with her mother and to have regular contact with her”. The psychiatrist also proposed specific measures in order to ensure the child's well-being (such as a psychological assessment of both parents and individual psychotherapy of the child at least once a week). The psychiatrist's report was sent to the public prosecutor, who took no further action. The authorities refused to give the applicant a copy of the report on the ground that it was confidential. The applicant obtained a copy only on 22 February 2002. 26. On 3 January 1998 the applicant's former husband brought his daughter to the applicant's house, but she refused to stay with her mother. 27. On 12 May 1998 the applicant asked the court to take formal note that her former husband had deliberately prevented her from having contact with the child from 9 August 1997 to 19 April 1998. On 26 February 1999 the court dismissed the applicant's request on the ground that the child did not want to see her mother and that the father was not responsible for the lack of contact (judgment no. 493/1999). 28. On 3 May 1999 the applicant appealed. On 12 February 2001 the court of appeal dismissed her appeal. It found that the applicant was not able to have access to her daughter owing to the latter's absolute refusal to see her mother, which in turn was the result of the child's feelings of distress after the applicant's departure from the family home. The child's father was doing all he could to reunite the family. Moreover, the applicant lived almost permanently abroad and it was therefore in any event impossible for her to visit her daughter once a week. The interest of the child should prevail and further strain on her mental health should be avoided at all costs (judgment no. 971/2001). 29. On 25 June 2001 the applicant appealed on points of law. The hearing took place on 15 January 2002. On 7 March 2002 the Court of Cassation dismissed the applicant's appeal as ill-founded (judgment no. 429/2002). 30. On 16 February 1998 the applicant lodged a criminal complaint against her former husband alleging that he had obstructed her contact with her daughter. On 10 May 1999 the Athens Criminal Court, sitting with a single judge, found the applicant's former husband not guilty (judgment no. 55770/1999), holding in particular: “The child reacts to any contact with her mother, after the latter abandoned her in Bristol in December 1996 after the child had travelled there to see her. The situation is typified by an incident on 23 August 1997, when [the applicant] assaulted her daughter at the Syntagma Square Police Station, kicking her and tearing out her hair (see the certificate from the police incident book). The [applicant's former husband] has never prevented his daughter from seeing her mother, nor has he ever urged her to avoid her mother.” 31. Following that judgment the applicant lodged criminal complaints against her former husband every time he failed to comply with the court's rulings. The father also brought various criminal charges against the applicant. Currently, more than thirty-five sets of criminal proceedings are pending.