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ECtHR / Application no. 41615/07 / Judgement

Neulinger and Shuruk v Switzerland

Deciding Body type:
European Court of Human Rights
Deciding Body:
European Court of Human Rights
Decision date:
Key facts of the case:
  1. The case originated in an application (no. 41615/07) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Swiss nationals, Ms Isabelle Neulinger and her son Noam Shuruk (“the applicants”), on 26 September 2007. The first applicant also has Belgian nationality and the second applicant also has Israeli nationality.
  2. The applicants were represented by Mr A. Lestourneaud, a lawyer practising in Thonon-les-Bains (France). The Swiss Government (“the Government”) were represented by their Agent, Mr F. Schürmann, of the Federal Office of Justice.
  3. The applicants alleged in particular that by ordering the return of Noam Shuruk to Israel, the Federal Court had breached their right to respect for their family life as guaranteed by Article 8, taken separately and in conjunction with Articles 3 and 9 of the Convention. They also claimed that there had been a violation of Article 6, alleging that the Federal Court had adopted an excessively restrictive interpretation of the exceptions to the Swiss authorities' obligation to order the second applicant's return and in doing so had failed to take account of his best interests.
  4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
  5. On 27 September 2007 the President of the Chamber decided to indicate to the Government, under Rule 39, that it was desirable, in the interest of the parties and for the proper conduct of the proceedings before the Court, not to enforce the return of Noam Shuruk.
  6. On 22 November 2007 the Court decided to give notice to the Government of the part of the application concerning the complaint under Article 8. It further decided that the admissibility and merits of the case would be examined at the same time (Article 29 § 3 of the Convention). It also decided to give the application priority under Rule 41.
  7. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.
  8. Written comments were received from Mr Shai Shuruk, the second applicant's father, who had been granted leave under Rule 44 § 2 to intervene as a third party.
  9. On 8 January 2009 a Chamber composed of Christos Rozakis, President, Anatoly Kovler, Elisabeth Steiner, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni and George Nicolaou, judges, and Søren Nielsen, Section Registrar, delivered a judgment. Unanimously, it declared the complaint under Article 8 of the Convention admissible and the remainder of the application inadmissible. By four votes to three it found that there had been no violation of Article 8. The separate dissenting opinions of Judges Kovler, Steiner and Spielmann were appended to the judgment.
  10. On 31 March 2009 the applicants requested that the case be referred to the Grand Chamber under Article 43 of the Convention and Rule 73. The panel of the Grand Chamber granted the request on 5 June 2009. It moreover confirmed the application of the interim measures that had been indicated under Rule 39.
  11. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
  12. The applicants and the Government each filed written observations on the merits.
  13. Observations were also received from Mr Shuruk. However, as they did not comply with the conditions laid down in Rule 44 §§ 2 and 4 of the Rules of Court, in conjunction with Article 36 § 2 of the Convention, they were not added to the case file.
  14. A hearing took place in public in the Human Rights Building, Strasbourg, on 7 October 2009..

Results (sanctions) and key consequences or implications of the case:

  1. Holds by sixteen votes to one that, in the event of the enforcement of the Federal Court's judgment of 16 August 2007, there would be a violation of Article 8 of the Convention in respect of both applicants;
  2. Holds unanimously that there is no need to examine separately the applicants' complaint under Article 6;
  3. Holds unanimously

(a)  that the respondent State is to pay the applicants jointly, within three months, EUR 15,000 (fifteen thousand euros) in respect of costs and expenses, to be converted into Swiss francs at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants on that amount;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses unanimously the remainder of the applicants' claim for just satisfaction.