GIUSTO, BORNACIN AND V. v. ITALY
Inadmissible
The first applicant, Mr Alessandro Giusto, and the second applicant, Ms Maria Chiara Bornacin, are a married couple and are both Italian nationals. They were both born in 1974 and live in Cogoleto (Genoa). Before the Court they stated that they were also acting on behalf of V. (the third applicant), a Belarusian national who was born on 25 May 1996 and currently lives in Belarus. The first two applicants signed powers of attorney authorising Mr A. Lana and Mr A. Saccucci, lawyers practising in Rome, to represent them before the Court. No power of attorney was signed either by the third applicant or by her statutory guardian. The facts of the case, as submitted by the applicants, may be summarised as follows. In 2003 the first two applicants submitted a request to the non-governmental association Onlus Liguria Mare to put up a child from the area affected by the Chernobyl nuclear disaster. On 28 June 2003 the couple took in the third applicant for the first time. V.'s father was unknown, while her mother, who had been deprived of parental responsibility, was dead. V., who had been declared eligible for adoption, was living in an orphanage (Internat) in Vileika (Belarus). V. stayed with the first two applicants on a regular basis, for three months in summer and two months in winter. The first two applicants visited her in Belarus for periods of approximately two weeks in between her trips to Italy. The couple maintained that they had spent about eighteen months with V. during the past three years, developing a relationship similar to that between parents and their children. On 17 August 2004 the Genoa Youth Court declared the first two applicants fit for international adoption. However, they were unable to adopt V. because in October 2004 Belarus decided to suspend all international adoption procedures. On 12 December 2005 Italy and Belarus signed a bilateral protocol in which Belarus undertook to conclude, by 1 March 2006, some one hundred and fifty adoption procedures pending with the Minsk Adoption Centre. The first two applicants instructed the Onlus Liguria Mare association to take the relevant steps concerning their application for adoption, while continuing to look after V. for about five months a year. By September 2006 only forty adoption procedures had been dealt with by the Minsk Adoption Centre. According to the first two applicants, whenever she arrived to stay with them, V. was bruised, had trouble sleeping and her behaviour was bordering on autistic. Those disorders would subside once the child had spent a certain amount of time in Italy, but would reappear as the date of her return to Belarus drew nearer. This was confirmed by a report issued on 30 January 2006 by a psychologist, Dr B., who found, among other things, that the symptoms in question appeared to “demonstrate the child's extreme suffering as a result of her precarious situation and highlight[ed] the urgent need to provide her with stable living conditions among the family who have de facto adopted her”. Furthermore, in 2004 the first two applicants had noticed cigarette burns on V.'s abdomen. Having been advised not to report the matter to the Italian authorities, they simply informed the director of the Vileika orphanage. In 2005 V. told the second applicant that the oldest boy in the orphanage had forced her and other girls to join in a game in which the girls had been undressed, tied up, kissed and bitten. According to a report drawn up on 10 March 2005 by Dr B., although the acts of violence suffered by V. “were not explicitly connected by her to the sphere of sexuality, they at least caused a state of confusion regarding displays of affection”. Before leaving for the 2006 summer holidays, V. allegedly told the second applicant on the telephone that she had found a way to remain in Italy: killing herself and becoming an angel. The personnel responsible for taking V. from the airport to the first two applicants' home confiscated razor blades in V.'s possession. According to the first two applicants, she was intending to use them to commit suicide. V. subsequently attempted to drown herself, but her plan was thwarted when other people intervened. During the 2006 summer holidays, V. told the second applicant that on several occasions she had been undressed, tied to a chair or bed, burned with cigarettes or lighters and forced to have oral or anal intercourse. The first two applicants suggested that V. visit another Belarusian child named Jacob, who was born on 31 March 1995 and was staying with a family in the Piedmont region. V. reacted hysterically to that suggestion. She then explained that in the Vileika orphanage she had been sexually abused by several people, including Jacob. It appears that Jacob confirmed that fact. In a report drawn up on 13 July 2006 Dr B. found the two children's versions of events to be credible. He added that V.'s suicidal fantasies were not the result of depression but an expression of the child's “magical thought” in response to her feeling of helplessness. A file on the matter was opened by the Turin public prosecutor's office. A gynaecological examination performed on V. on 11 July 2006 revealed slight abnormalities and a doctor noted the presence of “multiple haematomas [resulting] from bruising” to the child's thorax and abdomen. It was suggested that V. undergo therapy. On 28 June 2006 the first two applicants applied to the Genoa Youth Court to adopt V. In an order of 22 August 2006, the text of which was deposited at the registry on 31 August 2006, the Youth Court refused the application. It observed that international adoption was subject to an adoption order by the Belarusian authorities. The court added that the information of which it had been made aware might have justified urgent measures under Articles 9 and 10 of the Hague Convention of 5 October 1961; however, such measures already formed the subject of separate proceedings. In any event, the Belarusian authorities had to be informed of the need to conclude adoption procedures as a matter of urgency where children had been materially and morally abandoned. In the meantime, in a memorandum of 9 August 2006 the Belarusian Ministry of Education had expressed strong concern about the “improper conduct” of Italian families seeking to keep Belarusian children with them. It added that hearings held in the absence of official representatives of the children's interests (a State-appointed guardian and the Belarusian Consul) were unlawful, and demanded V.'s immediate repatriation. It also stated that the conduct referred to above was jeopardising the implementation of joint humanitarian projects. On 11 August 2006 the Belarusian Embassy asked the Genoa Youth Court to order the immediate repatriation of V. In an appended note the Belarusian National Adoption Centre criticised the judicial decisions taken by the Italian authorities as being liable to undermine relations between the two States. It asserted that the children had been placed under psychological duress by the host families. If a decision to place V. in the care of an Italian family had been taken, the National Adoption Centre demanded that it be revoked. On 16 August 2006 the Genoa Youth Court ordered that V. be entrusted to the care of Cogoleto District Council, which was to maintain her placement with the first two applicants. The court also instructed the Cogoleto social services and the mental-health and neuropsychiatry departments to “assume responsibility for the child's situation through assessment, diagnosis and treatment”. In addition, Cogoleto District Council was to submit a report by 30 October 2006. The court observed in particular that there was strong evidence that V. had been subjected to “sexual and other forms of violence” at the Vileika orphanage. Furthermore, as indicated by reliable sources, the child's behaviour gave rise to fears of serious and irreversible consequences if she was not given “immediate therapy”. Accordingly, measures for her protection were required pursuant to Article 9 of the Hague Convention. On 25 August 2006 V. met two Belarusian doctors at the Cogoleto District Council offices. According to a report by the District Council's head of social services, V. arrived at the meeting in the second applicant's arms and showed signs of stress as soon as the applicant had gone away. V. stayed close to the Italian staff, gave very brief replies to the questions and sometimes spoke in Italian. She firmly refused to take her clothes off. In a memorandum dated 25 August 2006 the Belarusian Embassy provided the Genoa Youth Court with a “comprehensive psychological, educational and medical rehabilitation programme” for V. The programme, approved by the Belarusian Ministry of Education, was to be carried out at the State Social and Pedagogical Centre in Minsk. The Belarusian Embassy undertook to inform the Italian Government periodically of the progress of V.'s rehabilitation. The programme in question contained a five-page description of the recreational and sports activities planned for V., her diet, the health checks and psychological counselling she would receive, and the persons responsible for each stage of her rehabilitation. In a memorandum dated 31 August 2006 the Belarusian Embassy informed the Italian Government that the Belarusian authorities had taken urgent steps to clarify the situation in the Vileika orphanage. They undertook to keep the Italian Government informed of the outcome of their enquiries. V. would be placed in a specialist rehabilitation centre, thus avoiding a return to the orphanage in question. In addition, a medical and psychological rehabilitation programme had been devised and the Youth Court had been notified of its contents. Italy would be informed of any developments in the programme. Moreover, Belarusian medical specialists had examined V. and had ruled out the possibility that her repatriation might affect her physical or mental health. She would be accompanied on the journey by specialist personnel. In the light of the above factors, the Belarusian Embassy considered that there was no objective justification for V. to remain in Italy. It requested the Italian authorities to take action by 8 September 2006. Failing that, Belarus would be obliged to suspend international adoptions with Italy and programmes for visits there by Belarusian children. Before the Court, the applicants produced a document dated 1 September 2006 by which the Italian Ministry of Justice had forwarded to the Genoa Youth Court the memorandum of 31 August 2006 from the Belarusian Embassy. The document of 1 September read: “Ministry of Justice The Minister's Office N. 102/41 Rome, 1 September 2006 To the Genoa Youth Court To the Turin Youth Court For information: to the Ministry of Foreign Affairs For information: to the Ministry of Social Solidarity For information: to the Ministry of Family Policies For information: to the Commission for Intercountry Adoption attached to the Prime Minister's Office Re.: Transmission of memorandum no. 149/1 dated 31 August 2006 from the Embassy of the Republic of Belarus For information, and fully respecting the powers of [your] judicial authority, we hereby forward you memorandum no. 149/1 sent today to [our] Ministry by the Embassy of the Republic of Belarus concerning the cases of the children ... and [V.], [who are the subject] of proceedings pending before the Genoa and Turin Youth Courts. The memorandum, after recapitulating the requests made by the above judicial authorities, which have apparently been fully satisfied, mentions the possibility of suspending international adoptions with Italy and programmes for the rehabilitation (risanamento) of Belarusian children [in Belarus] if the two children are not returned to the Republic of Belarus by 8 September 2006. In order to facilitate communication with the Belarusian Embassy in Italy and with the authorities to which this [memorandum] is being forwarded for information, notification of the decisions taken is expected forthwith.” The President of the Genoa Youth Court replied to the above letter on 5 September 2006. He stated that the Belarusian Embassy and Consulate had on several occasions contacted the Youth Court, which had always informed them of any decisions. The court was aware of the sensitive nature of the matter. On account of V.'s state of health, the court had entrusted her to the case of Cogoleto District Council. That decision had not been taken in connection with an adoption procedure; on the contrary, an application for the child's adoption under section 44 of Law no. 184/1983 (adoption in special cases) had been rejected. The reply by the President of the Youth Court further stated: “As soon as her health allows, in the opinion of the medical team looking after her, the child will return to Belarus, with due regard to the relevant provisions and the relations between the two States. It should also be noted that the letters we have been sent by the Embassy sometimes employ surprisingly peremptory language and indicate some confusion between the issue of adoption and the urgent procedures followed in accordance with Articles 9 and 10 of the Hague Convention of 5 October 1961, cited above. While it is aware of the serious implications referred to in the memorandums from the Belarusian Embassy, the court is clearly unable to order the transfer of a child against the appropriate medical advice.” According to a report drawn up on 5 September 2006 by a child neuropsychiatrist, Dr S., V. was very tense and anxious about her possible repatriation, which she viewed in dramatic terms, mentioning suicidal intentions. She had said that she had been sexually abused in Belarus by boys aged eighteen or nineteen who had found their way into the orphanage. V. showed that she had a deep relationship of trust with the first two applicants, whom she regarded as her own parents. In her opinion, her family was in Italy. Dr S. considered it necessary to continue the sessions with the child. Although she was probably fit to be “transported” in physical terms, she was not psychologically fit, because the frustration of her expectations was likely to cause trauma that would be difficult to overcome, resulting in permanent damage to her psychological and emotional stability. In a note of 5 September 2006 to the President of the Genoa Youth Court, the Commission for Intercountry Adoption attached to the Prime Minister's Office stated that, while it appreciated and accepted the court's decision and the initiatives taken by the Belarusian authorities to protect V., it wished to “offer the broadest, most practical means of cooperation to facilitate the repatriation” of V. After confirming the Belarusian authorities' consent to V.'s being accompanied by an Italian doctor, the commission said that it was awaiting “notification of the decisions taken by the court as regards the steps to be taken to ensure the child's repatriation on the scheduled date”. In an order of 6 September 2006, the text of which was deposited at the registry on 7 September 2006, the Genoa Youth Court set aside its decision of 16 August. It stated that the first two applicants were authorised to accompany V. on her journey back to Belarus or, failing that, to join her there and remain, with the local authorities' consent, for “as long as was deemed appropriate”. Lastly, the court asked the Ministry of Foreign Affairs, the Ministry of Family Policies and the Commission for Intercountry Adoption to inform it periodically of any developments concerning the child's treatment and compliance with the Hague Convention in her case. The court observed firstly that the Belarusian authorities had devised a detailed programme of treatment for V., making it possible for her, at her request, to stay in contact with the first two applicants. In addition, Belarus had undertaken not to prevent the first two applicants and Italian doctors from entering and staying in its territory. Accordingly, the Italian authorities were under an obligation to cooperate with their Belarusian counterparts in the child's best interests as guaranteed by the Hague Convention, to which both States were parties. The court observed at the same time that V. was “physically fit” to travel to Belarus, but that her immediate separation from her host family and doctors might cause her psychological trauma. On 8 September 2006 the first two applicants were contacted by the Cogoleto carabinieri, who reproached them for failing to attend an appointment scheduled for V.'s repatriation. According to the applicants, they had not been informed of the order of 6 September 2006, which was not served on their lawyer until 11 September. They also refused to disclose V.'s whereabouts, for her own protection. Proceedings were instituted against them for false imprisonment of a minor. On 11 September 2006 the Genoa Youth Court directed that V. was to be found as soon as possible and placed in a care home for as long as was strictly necessary to arrange for her repatriation. In addition, it prohibited V. from being entrusted to the care of anyone other than the persons indicated by the Belarusian authorities, and confirmed that she should be accompanied to Belarus by Dr B. and Dr S. On 22 September 2006 the first two applicants appealed against the order of 6 September 2006. They sought a stay of execution of the decision in issue, which was immediately enforceable. On 26 September 2006 the carabinieri found V. in Valle d'Aosta, in the company of the first two applicants' mothers. She was transferred to an institution run by nuns in Genoa. The first two applicants were initially not told the name of the institution and were subsequently not allowed to contact V. According to the first two applicants, pressure was put on them by the State Secretary for Justice and the Bishop of Savona (who claimed to be acting on behalf of the Minister of Justice) to withdraw their appeal. The hearing in the Genoa Court of Appeal was held on 28 September 2006. The representative of Belarus asserted that it was no longer possible for V.'s repatriation to take place under the conditions initially set by the Youth Court; in particular, the first two applicants could not accompany V. or keep in contact with her. According to the applicants, at the end of the hearing the Court of Appeal informed their lawyers that the decision would be delivered “in a few days”. It did not rule on the first two applicants' request for a stay of execution of the order appealed against. On 29 September 2006 at about 5 p.m. V., accompanied by Dr B. and Dr S., was taken by taxi to Genoa Airport. She was escorted by a car with carabinieri inside. According to the first two applicants, the taxi driver said that V. had been screaming and crying throughout the journey. On the same day at about 8.10 p.m. the first two applicants discovered on television that V. had been transferred to the airport. They went to the airport, together with their lawyers. They also contacted two other lawyers from Rome – their representatives before the Court – asking them to submit a request for interim measures under Rule 39 of the Rules of Court. The request was duly submitted but it arrived at the Court at about 10 p.m., by which time V. was already on board the aircraft bound for Minsk. The applicants subsequently withdrew their request, which the Court was therefore not required to examine. The first applicant was initially informed that a flight for Minsk had taken off at 8.40 p.m. In fact, the flight, with V. on board, did not leave Genoa until approximately 9.20 p.m. After a stop in Milan, it continued its onward journey to Minsk at about 11 p.m. On 30 September 2006 at about 12.55 p.m. the Genoa Court of Appeal deposited with the registry an order by which it dismissed the applicants' appeal. It appears from the case file that that decision had been adopted on 28 September 2006. The Court of Appeal observed that the order appealed against had been made by the Genoa Youth Court in an unusual factual context. In particular, on 12 August 2006 the Belarusian Embassy had sought V.'s repatriation. When interviewed the following day by the Cogoleto carabinieri, she had stated that she had been subjected to violence in her own country and did not wish to return there. Furthermore, on 16 August 2006 the Youth Court had noted, among other things, that V. showed signs of “profound psychological suffering”. On 25 August 2006 V. had been examined by two Belarusian doctors, in the presence of Italian specialists including a psychologist. She had replied to the questions in Italian and had refused to take her clothes off; as a result, only a superficial and external examination had been possible. The Belarusian Embassy had then stated that the programme of treatment devised for V. was in her interests and that any refusal to repatriate her would have “serious repercussions” for relations between the two countries as regards visits by Belarusian children to stay with Italian families. At the same time, Cogoleto District Council had suggested extending V.'s stay in Italy, stating that it was willing to provide the necessary assistance to that end. The neuropsychiatrist who had treated V. had said that the sudden removal of the child from what she regarded as her own environment would entail serious risks. The Court of Appeal explained that under the relevant provisions of Belarusian law, guardianship of V. was assumed by the director of the institution in which she had been placed. The first two applicants had agreed, as part of a cooperation scheme between Italy and many other States, to take in a foreign child for several months a year, for humanitarian purposes. Contact with the foreign care homes had been arranged by non-governmental organisations. V. had stayed three times with the first two applicants, a couple who had been declared fit to adopt a foreign child. V. had developed excellent relations with the couple in question, to such an extent that she wished to remain in Italy with them and saw them as her “parents”. Indeed, such aspirations were fairly common, since it was natural for children who did not have a family and came from less wealthy countries than Italy to find that Italian couples gave them the comfort and affection they needed. Difficulties thus frequently arose when the time came for the children to return to their own country. In the instant case, the ties between V. and the first two applicants were especially intense and this deep attachment, when set against her troubled experiences in the orphanage, had caused the child to attempt suicide in order to avoid being repatriated. Those tribulations had aroused strong reactions among the public, but that did not mean that the legal context of the present case could be disregarded. V.'s trips to Italy had not been intended to provide her with a new family. If the first two applicants had wished to take steps to that end, they should have applied to adopt V. in accordance with the procedure set out in the protocol between Italy and Belarus. Failing that, their position was that of assistants to the institution in which V. had been placed. In such circumstances, they lacked the capacity to appeal against the Genoa Youth Court's decision, which could have been challenged only by the institution in question, V.'s guardian or State Counsel's office. The first two applicants did not have any parental responsibility over V. and were therefore not “parties” to the judicial proceedings concerning her. That fact would have been sufficient to dismiss the appeal. However, in view of the media attention attracted by V.'s story, the Court of Appeal considered it necessary to point out that, even assuming that the first two applicants had had locus standi, their allegations could not in any event have been upheld. The Court of Appeal was competent to order measures to protect V. under Article 9 of the Hague Convention, provided that the child was in Italian territory and in danger. The Italian judicial authorities ceased to have jurisdiction once Belarus had taken the “steps demanded by the situation”. This was borne out by case-law of the Court of Cassation (judgment no. 1 of 9 January 2001). The relevance and sufficiency of the measures taken by the Belarusian authorities could be assessed by the Italian courts from a formal standpoint only; moreover, the courts in question had rightly adjourned consideration of the situation until the experts responsible for examining V. had submitted their conclusions. Nevertheless, under the New York Convention on the Rights of the Child, all children were entitled to receive such care as was necessary for their well-being and to live in conditions guaranteeing their balanced development. In order to observe those principles, the Court of Appeal had a duty to ensure that V.'s repatriation would not be traumatic and that the psychological aspect had been taken into account. In the instant case the Genoa Youth Court had laid down appropriate arrangements for the child's repatriation and Italy and Belarus had concluded agreements on that basis. The Court of Appeal thus reaffirmed that two Italian specialists should have “planned” the repatriation in conjunction with their Belarusian counterparts. The first two applicants could have been involved in such cooperation in V.'s interests, in accordance with the procedure suggested by the Youth Court for further elaboration by the Italian and Belarusian central authorities. It was true that Belarus had stated that it was “not very receptive” towards the first two applicants; that, however, was not a factor that could alter the Court of Appeal's conclusions. It had not proved necessary to interview V., seeing that she had already been interviewed and made her wishes clear. Summoning the child would have caused unnecessary trauma at a later stage. The Court of Appeal stated, lastly, that during the drafting of the statement of reasons for its order, it had learned informally that V. had already been repatriated on the initiative of the Belarusian authorities, under different conditions from those set out by the Youth Court. The Youth Court's new order, adopted after the first two applicants had failed to hand over V., was said to have justified that act. The Court of Appeal, before which only an appeal against the order of 6 September 2006 had been brought, was unable to make an assessment in that regard. On 12 October 2006 the doctors who had accompanied V. to Belarus returned to Italy. They submitted a report to the Genoa Youth Court stating that the child was in good psychological and physical health. The report was not sent to the first two applicants, who learned of its contents through the media. On 18 October 2006 they asked to be given access to it and to make copies, but their request was refused by the Genoa Youth Court on the ground that the Court of Appeal's decision indicated that the first two applicants did not have locus standi in the proceedings concerning V.'s repatriation. According to information supplied by the first two applicants on 18 October 2006, they had not received any news from the Italian authorities by that date as to V.'s state of health and had been unable to contact her, even by telephone. “Indirect” information had reached them through the Belarusian authorities. In addition, the director of the orphanage in Vileika had stated that V.'s allegations of being ill-treated in his institution were false. Accordingly, V. would be able to return to the orphanage in question after completing her psychological and educational rehabilitation programme. Following a request by the Registry, the first two applicants submitted fresh information on 18 December 2006 as to V.'s circumstances. They stated that, since lodging their application, they had had no contact with the child and had not received any news of her health. However, they had learned through the media that V. was living with Mr and Mrs Z., forty kilometres from Minsk. The Z. family were also looking after V.'s thirteen-year-old brother, S. The Belarusian authorities had apparently given the first two applicants cause to hope that they might be able to adopt V. The newspapers had also reported that V. had been given assurances about her return to Italy, which was said to be imminent. However, the first two applicants were not in possession of any evidence that steps to that end had been taken by Belarus. In addition, on several occasions V. had apparently reiterated her desire to live in Italy with the first two applicants.