CANEPA v. ITALY
Inadmissible
Christos Rozakis
The applicant is an Italian national, born in 1951 and currently residing in Chiavari (Genoa). In 1978 the applicant married Mrs G. Two children, X and Y, were born in wedlock in 1983 and 1988. In December 1993 the applicant left the marital house and started living with a certain Mrs M. The applicant alleges that, since then, he made substantial efforts to maintain regular contacts with X and Y. However, he had to face “the aggressive behaviour of his wife”, who allegedly tried to “destroy [his] reputation and his relationship with his own children.” The first claim before the Genoa Youth Court On 18 March 1994 the applicant requested the Genoa Youth Court (“tribunale dei minorenni”) to grant him the care and custody over his children. He observed that from 31 December 1993 he was de facto separated from his wife and that the latter had a negative influence on X and Y. In an order of 19 April 1994, the Genoa Youth Court provisionally granted Mrs G. the custody of the children. The court also decided that the applicant should have access to X and Y one day per week and one week-end every fortnight. The judicial separation proceedings and the proceedings before the Genoa Youth Court On 30 May 1994 Mrs G. filed a claim for judicial separation with the Genoa District Court. In an order of 3 February 1995, the President of the District Court confirmed the committal to Mrs G. of the children's care and custody and the applicant's right of access. He ordered, however, that X and Y should not stay overnight at the applicant's place when Mrs M. was present. On 26 May 1995 the applicant and Mrs M. had a daughter, Z. On 13 June 1995 the Genoa investigating judge appointed an expert, the psychologist and psychotherapist L., and charged him to analyse the relationship between X, Y and their parents and the behaviour of the applicant and Mrs G. with regard to their children. On 14 September 1995 L. informed the investigating judge that the applicant had refused to consign Y to his mother's care. In an order of 19 September 1995, the investigating judge decided to suspend the applicant's access to X and Y. This decision was adopted pursuant Article 333 of the Civil Code, according to which where the conduct of the parents is detrimental to the child, the judicial authorities may take any decision that is appropriate. Such decisions may be revoked at any stage of the proceedings. On 30 September 1995 a bailiff tried to apprehend Y at the applicant's place. However, notwithstanding the assistance of two carabinieri, this attempt failed since the child refused to join his mother. On 2 October 1995 the applicant presented to the investigating judge a report prepared by an expert of his own choosing. The report indicated that Y had shown a spontaneous desire to live with his father and that frustrating his will would have been detrimental for the child's psychological stability. On 3 October 1995 L. filed his final report with the District Court's registry. On the basis of the interviews he had had with the applicant, X, Y, Mrs G. and Mrs M., L. concluded that the applicant and Mrs M. were trying to use Y in order to sustain their animosity against Mrs G., who, on the other hand, had shown greater maturity and educational capacity. In an order issued on 6 October 1995, the Genoa investigating judge confirmed the suspension of the applicant's access to X and Y and ordered the case-file to be forwarded to the Genoa Youth Court. On 13 October 1995 the investigating judge ordered that Y be consigned to his mother's care, if need be, with the police's assistance. On 23 October 1995 the applicant appealed against this order. In a decision of 31 October 1995, filed with the registry on 2 November 1995, the Genoa District Court declared the applicant's claim inadmissible, no appeal being available against an execution order. On 3 November 1995 Mrs G., assisted by a bailiff and by the carabinieri, tried to apprehend Y at his primary school. This attempt failed as a consequence of the child's refusal to join his mother and of the intervention of the applicant and Mrs M. With regard to this episode, the applicant alleged that the carabinieri physically injured Y, who was moreover psychologically humiliated before his schoolmates. However, none of these circumstances is mentioned in the bailiff's written record. In an order of 1 February 1996, the Genoa Youth Court declared that Mrs M. should abstain from bringing Z in the neighbourhood of Y's primary school. It observed that according to the information at its disposal, Z, who was at that time about eight months old, had been waiting for prolonged periods in a car parked outside the school. Such a situation, which had occurred even on cold winter days, could be regarded as being detrimental to the interests of the little girl. This order was eventually revoked on 9 June 1997. According to the applicant, the Youth Court moreover threatened him and Mrs M. of limiting their parental authority over Z. In an order of 22 April 1996, filed with the registry on 29 April 1996, the Genoa Youth Court, acting in accordance with Article 333 of the Civil Code and observing that the applicant had refused to consign Y to his mother's care and to attend the meetings scheduled by the Genoa social services, ordered that the applicant's parental authority be suspended, that the care over Y be provisionally committed to the Genoa City Council and that the child be transferred to a public care institution. In execution of his order, on 29 April 1996 Y was apprehended by three policemen in front of his primary school and placed in the public care institution K., which was allegedly kept secret to the applicant. On 2 May 1996 the President of the Genoa Youth Court gave the applicant a letter from Y, which had been partly censored by the authorities in order to prevent the reader from finding out the place where it had been written. On 9 May 1996 the applicant lodged an appeal against the order of 22 April 1996. In an order of 6 June 1996, filed with the registry on 19 July 1996, the Genoa Youth Appeal Court confirmed the suspension of the applicant's parental authority. It annulled the remainder of the impugned decision, observing that pending the separation proceedings the Youth Court was not competent to decide issues other than those related to the above mentioned suspension. In the meanwhile, in a decision of 7 May 1996, the Genoa Youth Court had ordered that Y be committed to his mother, his continuos stay in a public care institution being detrimental for him. On 15 May 1996 Y started living with his mother's family. In a judgment of 7 May 1996, filed with the registry on 20 June 1996, the Genoa District Court declared that the applicant was responsible for the spouses' separation and fixed at 3,000,000 lire the monthly sum that he should pay to Mrs G. The District Court also granted Mrs G. custody of the children, confirmed the suspension of the applicant's access and charged the Genoa Youth Court to supervise a gradual and possible renewal of the contacts between X, Y and their father. On 31 July 1996 the applicant appealed against this judgment. On 10 October 1996 the President of the Genoa Court of Appeal fixed the date of the hearing at 6 December 1996. On that occasion the applicant declared that he did not intend to pursue his claim. In an order of the same day, filed with the registry on 9 January 1997, the Genoa Court of Appeal declared the applicant's appeal inadmissible. As a consequence, the judgment of 7 May 1996 became final. The applicant indicated that the decision to withdraw his appeal was due to the little confidence he had in the Genoa magistrates. In the meanwhile, in an order of 7 October 1996, the Genoa Youth Court had granted the applicant access to Y once a week. All the meetings took place in a public care institute where an educator (“educatore”) was always present. The applicant alleged that, notwithstanding the Youth Court's decision, on 16 July 1997 an educator named F. decided to suspend the meetings at issue. From that date, the applicant had no further contacts with Y. In a note of 22 October 1997, F. informed the Genoa Public Prosecutor's Office that the social services had tried on several occasions to get in touch with the applicant - who could not be found - and had eventually recorded a message on his answering machine, without any result. On 4 June 1997 the applicant requested the Genoa District Court to reduce the amount of the monthly sum due to Mrs G. and to grant him custody over Y and access to his children. In an order of 16 July 1997, filed with the registry on 23 July 1997, the Genoa District Court, observing that the applicant was not represented by a lawyer as prescribed by Italian law, declared this claim inadmissible. According to the applicant, the Genoa Youth Court and its attached Public Prosecutor's Office refused to take into consideration a number of claims he had personally introduced seeking the annulment of the suspension of his parental authority and the adoption of a number urgent measures in the interests of his children. The divorce proceedings On 30 April 1998 the applicant introduced a claim for divorce before the Genoa District Court. The date of the hearing was fixed at 13 November 1998. The proceedings were subsequently adjourned to 7 January 1999, on which date the President of the District Court placed himself at the disposal of the parties with a view of securing a friendly settlement of the matter. Considering that there was no basis for such a settlement, the President adjourned the case until 8 June 1999. The other claims introduced by the applicant In 1996 and 1997, the applicant had introduced a number of claims, requesting that criminal proceedings be instituted against L., the magistrates of the Genoa Youth Court, a lawyer of his own choosing, Mrs G's father and the educator F. None of these claims had any substantial result. In particular, on 3 June 1998 the Genoa investigating judge decided not to commence proceedings against F. on the basis of the applicant's allegations.