GODELLI v. ITALY

STRASBURG25. September 2012

EUROPEAN COURT OF HUMAN RIGHTS

Camilla Di LibertoMartina BalazovaMartina FoliniSonya MusaAlice Suardi

The applicant was born on 28° March 1943 in Trieste, and abandoned by her mother at

birth.

Her certificate birth records that her mother did not consent to be named.

After some years in a orphanage, the applicant was adopted by Mr and Mrs

Godelli, under simple adoption.

THE CIRCUMSTANCES OF THE CASE

2006 Trieste Register Office, that gave her the birth certificate, on which her birth mother’s name did not appear

2007 Trieste City Court, that declined jurisdiction and dismissed the application

2007 Trieste Family Court, that in 2008 dismissed her application since she was prohibited from gaining access to information about her origins because her mother had not agreed to have her identity disclosed

THE CIRCUMSTANCES OF THE CASE

The applicant appealed to the Court of Appeal, which dismissed her appeal by decision of 23° December 2008 stating that:

The applicant did not lodge an appeal on point

of law.

2009 ECHR against the Italian Republic, under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedom stating that there has been a violation of Art. 8

THE CIRCUMSTANCES OF THE CASE

1. Family Court had correctly applied the Domestic Law,

2. Prohibition to access to information about her origins also served a public interest.

ART. 250 Civil Code One of the parents may decide to not recognize his or her child. In order to exercise this right the mother must request to the hospital to keep her identity secret.

Section 27 of Law no. 184/1983 guarantees the right to keep a child’s origins secret in the absence of express authorization by the judicial authority.

Judgment of 16 November 2005 the Constitutional Court held that withholding information about a child’s origins without first verifying whether the mother still did not whish to be identified was compatible with Articles 2, 3 and 32 of the Constitution.

RELEVANT DOMESTIC LAW

Ms. Anita Godelli - The applicant

Complained of her inability to obtain information about her birth family

Maintained that she had suffered severe damage as a result of not knowing her personal history

Complained that, the legislature had given preference to the mother’s interests

Submitted that she had been the subject of a simple adoption order, which had not created an effective family relationship

She relied on Article 8 of the Convention

Appeal to the European Court

Italian Government

The appeal embraced by

Godelli is not admissible:

Internal legal path of appealhas not reached the finalstage Godelli didn’t appeal to theCourt of Cassation towardswhich she could ask to assessthe legitimacy of the judicialdecision in conformity with theart. 111 of the Italian Constitutionand may reach re-trialsauthorization

Appeal to the European Court

Ms. Anita Godelli

The opportunity to appeal to the Court of Cassation, as reported by the Italian Government claim, was not effective:

The current process had not reached a final decision

The appeal to the Court of Cassation is admissible only with regard to final assessment of inferior domestic law

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 8 of the European Convention on Human Rights

On violation of art. 8 of the Convention

Anita Godelli

Everyone’s right to their personal history and family life

Convention applied to both the child and the mother

Italian system should struck a reasonable balance between the competing rights and interests

Italian Government

No violation has occurred:

Godelli has no actual family affiliation with her natural mother

Since the art. 8 presume an actual relationship between family member, it could not be adopted

On the merits

Anita Godelli

No other legislative system protected the mother– giving birth anonymously, abandoning the child anonymously

REC 1443 (2000) “International adoption: respecting children’s rights”: “ensure the right of adopted children to learn of their origins at the latest on their majority and to eliminate from national legislation any clauses to the contrary” (Parliamentary Assembly of the Council of Europe)

Italy had exceeded the limits of the Article 8 – the system in place did not take account of the child’s interests

Italian Government

The Domestic law was aimed at giving balance between two private interests entered into conflicts

Late petition: the applicant could have claimed her origins in 1983 instead of waiting until 2006

No effective risks for the applicant or for the current family health

Article 8 has negative and positive implications

and there must be a fair balance between the competing interests

the States must reconcile the protection of the mother and the legitimate request of the applicant to have access to information about her origins while protecting the general interest

The Court’s assessment (1)

the child has a right to know its origins

the mother has the right to remain anonymous

The right to an identity is part of the notion of private life

BUT

the applicant’s request was totally refused without any balancing of the competing interests

Italian law does not allow a child who was adopted to request access to non-identifying information concerning his/her origins or the disclosure of the mother’s identity

The Italian authorities failed to strike a balance and achieve proportionality between the interests at

stake

VIOLATION OF ARTICLE 8

Application of Article 41 of the Convention just satisfaction to the injured party

The Court’s assessment (2)

Domestic authorities being afforded the appropriate measure to ensure the balancing process

Legislature on anonymity goes beyond the scope of Art. 8 as it serves the RIGHT TO LIFE

The Court’s task is not to review the relevant legislature or practice in the abstract and also not to substitute itself for the national authorities in determining the most appropriate forces for regulating matters of anonymous births

According to Judge Sajo, the applicant’s late request for maternal information was not a critical situation as it will have no effect on her personal development.

DISSENTING OPINION OF JUDGE SAJO

Declares the appeal admissible

Declares, by six votes to one, that there has been a violation of Article 8 of the Convention

Reparation provided by the Italian authorities to the applicant for damages and expenses

incurred during the legal process

All the issues such as repealing the legislatures on anonymity, that were presented to the court

besides the violation of the Article 8 were rejected

COURT’S FINAL JUDGMENT