Case of European Court of Human Rights, January 24, 2017 (case PARADISO AND CAMPANELLI v. ITALY)

Defense:ITALY
Resolution Date:January 24, 2017
SUMMARY

Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

 
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GRAND CHAMBER

CASE OF PARADISO AND CAMPANELLI v. ITALY

(Application no. 25358/12)

JUDGMENT

STRASBOURG

24 January 2017

This judgment is final but it may be subject to editorial revision.

In the case of Paradiso and Campanelli v. Italy,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Luis López Guerra, President,Guido Raimondi,Mirjana Lazarova Trajkovska,Angelika Nußberger,Vincent A. De Gaetano,Khanlar Hajiyev,Ledi Bianku,Julia Laffranque,Paulo Pinto de Albuquerque,André Potocki,

Paul Lemmens,Helena Jäderblom,Krzystof Wojtyczek,

Valeriu Griţco,Dmitry Dedov,

Yonko Grozev,Síofra O’Leary, judges,and Roderick Liddell, Registrar,

Having deliberated in private on 9 December 2015 and 2 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 25358/12) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Italian nationals, Mrs Donatina Paradiso and Mr Giovanni Campanelli (“the applicants”), on 27 April 2012.

  2. The applicants were represented by Mr P. Spinosi, a lawyer practising in Paris. The Italian Government (“the Government”) were represented by their co-Agent, Mrs P. Accardo.

  3. The applicants alleged, in particular, that the measures taken by the national authorities in respect of the child T.C. were incompatible with their right to private and family life, as protected by Article 8 of the Convention.

  4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 27 January 2015, a Chamber of that Section composed of Işıl Karakaş, President, Guido Raimondi, András Sajó, Nebojša Vučinić, Helen Keller, Egidijus Kūris and Robert Spano, judges, and also of Stanley Naismith, Section Registrar, declared the application admissible regarding the complaint raised by the applicants on their own behalf under Article 8 of the Convention concerning the measures taken in respect of the child and the remainder of the application inadmissible, and held, by five votes to two, that there had been a violation of Article 8. The joint partly dissenting opinion of Judges Raimondi and Spano was annexed to the judgment. On 27 April 2015 the Government requested that the case be referred to the Grand Chamber under Article 43 of the Convention. On 1 June 2015 the panel of the Grand Chamber granted that request.

  5. The composition of the Grand Chamber was decided in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24.

  6. The applicants and the Government each filed further written observations (Rule 59 § 1).

  7. A hearing took place in public in the Human Rights Building, Strasbourg, on 9 December 2015 (Rule 59 § 3).

    There appeared before the Court:

    (a) for the GovernmentMsP. Accardo,Co-Agent,MsM.L. Aversano, Office of the Government Agent,MsA. Morresi, Ministry of Health,Ms G. Palmieri, lawyer,MrG. D’Agostino, Ministry of Justice,Advisers;

    (b) for the applicantsMrP. Spinosi, lawyer,Counsel,Mr Y. Pelosi, lawyer,MrN. Hervieu, lawyer,Advisers.

    The Court heard addresses by Mr Spinosi, Ms Aversano, Ms Morresi and Ms Palmieri and also their replies to questions from judges.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  8. The applicants – a married couple – were born in 1967 and 1955 respectively and live in Colletorto.

    1. The child’s arrival in Italy

  9. After trying to have a child and having unsuccessfully resorted to medically assisted reproduction techniques, the applicants put themselves forward as adoptive parents.

  10. On 7 December 2006 the applicants obtained official authorisation from the Campobasso Minors Court to adopt a foreign child within the meaning of Law no. 184 of 1983, entitled “The Child’s Right to a Family” (hereafter, “the Adoption Act”), subject to the condition that the child’s age was to be compatible with the limits foreseen by the Act (see paragraph 63 below). The applicants state that they waited in vain for a child who was eligible for adoption.

  11. They subsequently decided to try resorting to assisted reproduction techniques again and to a surrogate mother in Russia. To that end, they contacted a Moscow-based clinic. The first applicant stated that she travelled to Moscow, transporting from Italy the second applicant’s seminal fluid, duly conserved, which she handed in at the clinic.

    A surrogate mother was found and the applicants entered into a gestational surrogacy agreement with the company Rosjurconsulting. After a successful in vitro fertilisation on 19 May 2010, two embryos were implanted in the surrogate mother’s womb on 19 June 2010.

  12. On 16 February 2011 the Russian clinic certified that the second applicant’s seminal fluid had been used for the embryos to be implanted in the surrogate mother’s womb.

  13. The first applicant travelled to Moscow on 26 February 2011, the clinic having indicated that the child was due to be born at the end of the month.

  14. The child was born in Moscow on 27 February 2011. On the same day the surrogate mother gave her written consent to the child being registered as the applicants’ son. Her written declaration, bearing the same date and read aloud at the hospital in the presence of her doctor, the chief physician and the head of the hospital department, is worded as follows (English translation of the original Russian version):

    “I, the undersigned... have given birth to a boy in the ... maternity hospital in Moscow. The child’s parents are an Italian married couple, Giovanni Campanelli, born on ... and Donatina Paradiso, born on..., who expressed in writing their wish to have their embryos implanted in my womb.

    On the basis of the foregoing and in accordance with section 16(5) of the Federal Law on Civil Status and Article 51(4) of the Family Code, I hereby give my consent for the above couple to be entered in the birth record and the birth certificate as parents of the child to whom I have given birth...”

  15. In the days following the child’s birth, the first applicant moved with him into a flat in Moscow, rented by her in advance. The second applicant, who had remained in Italy, was able to communicate with her regularly via internet.

  16. On 10 March 2011 the applicants were registered as the new-born baby’s parents by the Registry Office in Moscow. The Russian birth certificate, which indicated that the applicants were the child’s parents, was certified in accordance with the provisions of the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents.

  17. On 29 April 2011 the first applicant went to the Italian Consulate in Moscow, with the birth certificate, in order to obtain the documents that would enable her to return to Italy with the child. The Italian Consulate issued the documents enabling the child to leave for Italy with the first applicant.

  18. On 30 April 2011 the first applicant and the child arrived in Italy.

  19. In a note of 2 May 2011 – which was not filed in the proceedings before the Court – the Italian Consulate in Moscow informed the Campobasso Minors Court, the Ministry of Foreign Affairs and the Colletorto Prefecture and Municipality that the paperwork in respect of the child’s birth contained false information.

  20. A few days later the second applicant contacted the Colletorto municipality, requesting that the birth certificate be registered.

    1. The reaction of the Italian authorities

  21. On 5 May 2011 the prosecutor’s office opened criminal proceedings against the applicants, who were suspected of “misrepresentation of civil status” within the meaning of Article 567 of the Criminal Code, of “use of falsified documents” within the meaning of Article 489 of the Criminal Code and of the offence set out in section 72 of the Adoption Act, since they had brought the child to Italy in breach of the procedure provided for by the provisions on international adoption contained therein (see paragraph 67 below).

  22. In parallel, on 5 May 2011, the Public Prosecutor’s Office at the Campobasso Minors Court requested the opening of proceedings to make the child available for adoption, since he was to be considered as being in a state of abandonment for the purposes of the law. On the same date the Minors Court appointed a guardian ad litem (curatore speciale) and opened proceedings to make the child available for adoption.

  23. On 16 May 2011 the Minors Court placed the child under guardianship at the request of the Public Prosecutor. The child’s guardian asked the court to suspend the applicants’ parental responsibility, in application of section 10 § 3 of the Adoption Act.

  24. The applicants challenged the measures in respect of the child.

  25. Following a request of the Minors Court on 10 May 2011, the applicants were visited by a team of social workers on 12 May 2011. Their report, dated 18 May 2011, indicated that the applicants were viewed positively and respected by their fellow citizens, and that they had a comfortable income and lived in a nice house. According to the report, the child was in excellent health and his well-being was self-evident, since he was being cared for by the applicants to the highest standards.

  26. On 25 May 2011 the first applicant, assisted by her lawyer, was questioned by the Larino carabinieri. She stated that she had travelled to Russia alone in September 2008, transporting her husband’s seminal fluid. She stated that she entered into a contract with the company Rosjurconsulting, which had undertaken to find a surrogate mother willing to be implanted with genetic material from the first applicant and her husband through the Vitanova Clinic in Moscow. The applicant explained that this practice was perfectly legal in Russia and had made it possible for her to obtain a birth certificate which identified the applicants as parents. In June or July 2010 the first applicant had been contacted by the Russian company, which...

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