CASE OF BATTISTA v. ITALY
Remainder inadmissible;Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Non-pecuniary damage - award
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano
I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1967 and lives in Naples. 5. While he was in judicial separation proceedings from his wife (D.L.), a provisional residence order was issued to both parents in respect of the couple’s two children (G.L. and M.T.). 6. On 29 August 2007 the applicant asked the guardianship judge to issue him with a new passport, requesting that the name of his son, G.L., also be entered in it. His former wife objected, arguing that the applicant was not making the maintenance payments ordered by the president of the court at the time of the judicial separation. 7. By a decree of 18 September 2007, the guardianship judge rejected the applicant’s request, holding that it was inappropriate to issue the requested passport, given the imperative of protecting the children’s right to receive the maintenance payments. In this regard, he emphasised that the applicant, who was supposed to make a maintenance payment of 600 euros (EUR) per month, paid only a small amount (EUR 45 to 90) and that there was a risk that he would shirk his obligation completely if he were to travel abroad. 8. By a decision of 26 October 2007, the guardianship judge ordered that M.T.’s name be removed from the applicant’s passport. 9. On 31 October 2007 the Naples Police Commissioner (questore) ordered the applicant to hand in his passport to the police station and amended his identity card, making it invalid for foreign travel. 10. The applicant appealed to the Naples Court against the guardianship judge’s decision. He alleged that: – under the measures ordered by the president of the court at the time of the judicial separation, the children had been due to spend the period of 10 to 26 August, during the school holidays, with him; on that basis, he had planned to take them to Sicily by plane; however, this required that the names of his two children be included in his passport; – on account of his former wife’s objection and the guardianship judge’s decree, he and his children had been unable to go on holiday; – the children’s names were included in the mother’s passport; – the dismissal of his request amounted to a penalty that was not prescribed by law. 11. On 7 February 2008 the applicant asked the Naples guardianship judge to issue him with a new passport, explaining that his former wife had retained his identity card and his passport in the family home. 12. By a decree of 29 February 2008, the Naples guardianship judge dismissed the applicant’s request on the ground that he had not paid the maintenance sums due in respect of his children, and that it was to be feared that he was leaving the country only in order to evade his obligation entirely. The applicant also appealed against that decision to the Naples Court, alleging a breach of his right to freedom of movement. 13. By a decision of 5 February 2009, the Naples Court joined the appeals and dismissed them. The court noted, firstly, that the legal basis for the guardianship judge’s decision was Law no. 1185 of 21 November 1967, as amended by the Passports Act 2003 (Law no. 3). 14. The court found that the guardianship judge did indeed have jurisdiction to rule on the applicant’s request for a passport and on the inclusion in it of his son’s name. As to the merits of the appeal, the court noted that the applicant was not complying with his obligation to pay maintenance and that this circumstance was one of the lawful grounds for refusing to issue a passport, in the children’s interests, in accordance with section 12 of the Passports Act. 15. On 4 November 2008 D.L. was ordered to pay a fine of EUR 100 for failing to bring the children to an appointment with the applicant. 16. By a decree of 8 April 2009, the guardianship judge issued D.L., at her request, with a passport in which the names of the two children were included. 17. On 21 August 2012 the applicant asked the Naples guardianship judge to issue individual passports to his children, in application of Legislative Decree no. 135 of 2009. 18. D.L. objected, arguing that the children did not need these passports; that the applicant had made no maintenance payments since 2007; and that, indeed, criminal proceedings were pending in that regard. 19. By a decision of 3 October 2012, the guardianship judge rejected the applicant’s request. He considered that the proceedings for the separation of the applicant and D.L. were still pending and that, in the light of the considerations put forward by D.L., with whom the children resided, it was appropriate to stay any issue of passports to the children. The applicant did not appeal against that decision.