ECtHR / Application no. 41615/07 / Judgement

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.

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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.

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17) The first applicant, who refers to herself as Jewish, decided to settle in Israel in 1999. There she met an Israeli national, who is also Jewish, and they were married on 23 October 2001 in Israel. They had a son, Noam, who was born in Tel Aviv on 10 June 2003. He has Israeli and Swiss nationality.

18) According to the applicants, in the autumn of 2003 the child’s father joined the Jewish “Lubavitch” movement, which they have described as an ultra-orthodox, radical movement that is known for its zealous proselytising.

19) Marital difficulties then arose, and the first applicant, fearing that her husband would take their son to a “Chabad-Lubavitch” community abroad for religious indoctrination, applied to the Tel Aviv Family Court for a ne exeat order to prevent Noam’s removal from Israel. On 20 June 2004 the court made a ne exeat order that was to expire when the child attained his majority, that is to say on 10 June 2021, unless annulled by the court in the meantime.

20) In an interim decision of 27 June 2004, the same court granted “temporary custody” of the child to the mother and requested the Tel Aviv social services to draw up an urgent welfare report. The “guardianship” of the child was to be exercised jointly by both parents.

21) In a decision of 17 November 2004, the court, on the recommendation of a social worker, confirmed the first applicant’s custody of the child and granted a right of visitation to the father.

22) On 10 January 2005 the Israeli social services were obliged to intervene. They instructed the parents to live apart, in the interest of the child. (...)

23) That same day, the first applicant filed a complaint with the police accusing her husband of assault.

24) In an injunction of 12 January 2005 the competent judge of the Tel Aviv Family Court, upon an urgent application lodged earlier that day by the first applicant, prohibited the father from entering the child’s nursery school or the first applicant’s flat, from disturbing or harassing her in any manner whatsoever, and from carrying or possessing a weapon. Restrictions were also imposed on the access right granted to the father, who was now authorised to see the child only twice a week under the supervision of the social services at a contact centre in Tel Aviv.

25) The couple’s divorce was pronounced on 10 February 2005 with no change in the attribution of guardianship.

26) As the father had defaulted on his maintenance payments to the first applicant, an arrest warrant was issued against him on 20 March 2005.

27) In a decision of 27 March 2005, a judge of the Tel Aviv Family Court dismissed an application lodged by the first applicant for the annulment of the ne exeat order prohibiting the removal of the second applicant from Israel. The judge found, in particular, that there was a serious risk that the mother would not return to Israel with the child after visiting her family abroad, in view of the fact that she had no ties in that country.

28) On 24 June 2005 the first applicant secretly left Israel for Switzerland with her son.

Outcome of the case:

For these reasons, the Court 

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;

4.Dismisses unanimously the remainder of the applicants’ claim for just satisfaction.