Plasse -Bauer v France - 21324/02 [2011] ECHR 1259 (08 June 2011)

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The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the failure to enforce a domestic court decision awarding visiting rights to the applicant and laying down the conditions for their exercise (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

This case concerns the failure to enforce a court decision awarding the applicant visiting rights in respect of her daughter and laying down the conditions for the exercise of these rights (violation of Article 6§1).

An appeal court judgment of 1997 required the presence at the applicant’s visits of a third party, an association. As the association concerned found it materially impossible to fulfil its mission, the judgment remained unenforced.

The European Court held that the national authorities did not make all sufficient efforts which might reasonably be expected to uphold the terms and conditions of the visiting rights. In particular, the authorities should have checked beforehand whether the association was in a position to carry out the public authorities’ mandate to ensure compliance with the conditions for the exercise of visitation rights as laid down in the appeal court’s judgment, in order to enforce it.

The applicant’s daughter came of age in 2004. The European Court awarded just satisfaction in respect of the non-pecuniary damages sustained by the applicant. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

The French authorities consider that the violation found in this case does not reflect any systemic problem. The Ministry of Justice is not aware of any similar case. In this particular case, it is the implementation of national law that caused the violation. Taking into account the fact that the French authorities, in particular the judiciary, apply the Convention directly, measures to draw their attention to the judgment should make it possible to avoid similar violations. Such measures have been adopted. The judgment has been brought to the attention of the departments of the Ministry of Justice concerned and of the competent courts and authorities, including judges competent for family matters, the Office of the Prosecutor General before the Court of Cassation, the Courts of Appeal of Aix en Provence and Orleans. In July 2007, the judgment was published by the Observatoire de droit européen on the website of the Court of Cassation.

Furthermore, the law has evolved since the facts in this case. In 2007, neutral structures for exercise of visiting rights have been recognised by Law No. 2007-297 of 5/03/2007 (Art. 22). This added a paragraph in Articles 373-2-1 and 373-2-9 of the Civil Code, expressly providing that meetings between a parent and his or her child taking place in a neutral structure are one of the means available to judges competent for family matters when organising visiting rights. These articles, modified by Law No. 2010-769 of 09/07/2010 (Art. 7), added that, whether imposed by the interest of the child or where the direct hand-over of the child to the other parent constitutes a danger for one of them, the judge may order that the visiting rights are carried out in a neutral structure chosen by the judge, or with the assistance of a trustworthy third party or of a representative of a qualified legal entity.

The government considers that no individual measures are necessary in this case except from the payment of just satisfaction, that the general measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

1 Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies

Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total
-	3000 EUR	4000 EUR	7000 EUR
Paid on 25/08/2006

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You are here: BAILII >> Databases >> European Court of Human Rights >> Plasse -Bauer v France - 21324/02 [2011] ECHR 1259 (08 June 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1259.html Cite as: [2011] ECHR 1259