November 12, 2018
Simona Florescu, PhD fellow, Leiden Law School, the Child Law Department
In September I had the opportunity to meet the applicant in the Grand Chamber case Neulinger and Shuruk v Switzerland. We had a lengthy 4 hours conversation about the ins and outs of her personal situation, the circumstances that led her to taking her son away from Israel to Switzerland and her experience with the European Court of Human Rights. Hence, in this contribution, I would like to share that experience and highlight some aspects which may be potentially interesting for the readership of this blog.
But first a brief reminder of the circumstances of the case.
Ms Neulinger, who is a Swiss, Belgian and Israeli citizen moved to Israel in 1999 where she met the man who was to become her husband. In 2003, they had a son, Noam. Soon after the birth, marital difficulties arose sparkled by the husband joining the ultra-orthodox Jewish “Lubavitch” movement. Fearing that he would take their son to a religious community abroad –as apparently had happened in the past with members of an ultra-orthodox community – Ms Neulinger applied to the Israeli courts for an order prohibiting Noam’s removal (i.e. a ne exeat order) Against the background of increased acrimony between the spouses including verbal and physical abuse against Ms Neulinger, the Israeli courts pronounced the divorce. Sole physical custody was awarded to her, the father having a limited access right under supervision for their son. However, the guardianship over Noam was to be exercised jointly, meaning that Ms Neulinger was not entitled to leave the country with her son. She applied for the lifting of the ne exeat order, however, this was refused by the Israeli courts. After this, she secretly fled the country with her son to Switzerland.
Given the father’s guardianship right under Israeli law, such a departure amounted to child abduction for the purposes of the 1980 International Convention on the Civil Aspects of Child Abduction. Therefore, Noam’s father started proceedings for the return of his son to Israel. Civil proceedings were instituted in Switzerland and criminal proceedings in Israel. In Switzerland, the Federal Court overturned two previous positive judgments for Ms Neulinger, and held that there was no obstacle for her to return to Israel and that Noam would not face a grave risk of harm if returned with or without his mother. This judgment was served on 21 September 2007 and Ms Neulinger was to secure the return of Noam to Israel by the end of September.
On 26 September 2007 Ms Neulinger applied to the ECtHR who indicated interim measures to the Government pursuant to rule 39 on 27 September 2007. The enforcement of the Swiss judgment was therefore suspended pending the outcome of the ECtHR proceedings.
ECtHR procedure and outcome
On 8 January 2009, the Chamber found by four votes to three that Article 8 of the Convention had not been infringed. The case was thereafter referred to the Grand Chamber who reversed the previous Chamber ruling and found by 16 votes to one that in the event of enforcement there would be a violation of Article 8 ECHR. The ruling was delivered on 10 July 2010 after –at the order of the Court- the enforcement of the Swiss return order had been suspended for about 2 years and 10 months.
Without going too much into the details of the Grand Chamber judgment it is interesting to note that the violation of Article 8 ECHR was mainly found on account of the significant period of time which had elapsed since Ms Neulinger had applied to the Strasbourg Court. In that time Noam became integrated in Switzerland and his father did not attempt to have contact with him. At the same time, the Court considered that Ms Neulinger’s refusal to return to Israel had not been totally unjustified (given among others that she was facing serious criminal sanctions there). For all these reasons the Court found a conditional violation of Article 8 ECHR – that is, a violation only if the Swiss authorities enforced the existing return order for Noam.
Insights from Ms Neulinger
In our conversation, Ms Neulinger went to great lengths in discussing the many aspects of her case. All of these are interesting in their own right, however, in this piece, I will focus on the issues which in my opinion may be relevant for the specialists into the European Convention of Human Rights and the European Court.
First, I asked her how she decided to apply to the Strasbourg Court. For me, it seemed that the choice to file an application was a natural one. However, the reality was slightly different. The lawyers representing her in the domestic proceedings did not mention the European Court. She herself had never heard of this court before. After the end of the domestic proceedings, when she was given a couple of weeks’ time before Noam was supposed to return to Israel –with or without her- she found herself highly distressed. She could not conceive going back to a country where she was facing 20 years imprisonment or hand over her son to authorities knowing that she would never see him again. She then started handing out flyers on the street hoping that she will receive enough public support to stop the enforcement of the return order. It was then that one of the judges of the Court who happened to pass by asked her if she had ever considered filing an application to the ECtHR. This brought new hope that something could change. Fortunately for Ms Neulinger, with the help of her friends she was able to gather enough material resources and her network pointed her in the direction of a lawyer specialized in the proceedings before the ECtHR. It was her lawyer who advised her to request interim measures so as to suspend the enforcement of the return order. Prior to her case, the ECtHR had only applied this interim measure in one other application, which was ultimately declared inadmissible. Fortunately for Ms Neuliger the Court accepted the request. Her feelings when learning that Noam would not face immediate return could not be described. After months of distress, it was the very first time she felt she could finally breathe and hope was again in sight. We all know what happened afterwards. The ECtHR’s Chamber, by a slight majority, found that Article 8 had not been infringed and this finding was reversed in the Grand Chamber where the ECtHR –for the first time in a case brought by an abducting parent – ruled that enforcing the return would result in a breach of Article 8. The judgment itself has been heavily criticized by practitioners and academics alike. Despite the criticism, whose merits I am not disputing, I do believe that this case sparked a new understanding at the domestic level of the child’s best interests in abduction situations. However, it is the finding of a conditional violation of Article 8 which I will now turn to.
After the Grand Chamber ruling, Ms Neulinger applied to the Swiss courts for a reopening of the domestic proceedings. This was rejected precisely because the infringement before the ECtHR was conditional. In other words, the Swiss authorities estimated that as long as the return order was not enforced, they were not under any obligation to revise the substance of the domestic decisions. The effect of this interpretation is that to-date, after almost 11 years there is still a final, yet unenforced, domestic judgment ordering the return of Noam to Israel. Interestingly, this is precisely why Judge Zupančič wrote the only dissenting opinion to the Grand Chamber’s judgment. He specifically mentioned that finding a conditional violation will probably curtail the applicant’s possibility to reopen the domestic proceedings. The Swiss courts did refuse to reopen the proceedings and as such Ms Neulinger does not have the right to come back to the ECtHR to request that the domestic decisions are brought in line with the ECtHR’s case-law. Indeed, as Judge Zupančič mentioned, this raises questions as to the extent to which Strasbourg judgments are in fact binding for domestic courts.
One final point is – perhaps related to the fact that the Swiss non-return order is still in force – nothing has changed in Israel. Ms Neulinger is still not able to return to Israel since the criminal case against her has not been withdrawn.
A positive note for Ms Neulinger has been her success in stopping the enforcement of the domestic judgments ordering the return of her son to Israel. Further, she has since become one of the greatest advocates of the ECtHR. Yet, from a legal perspective, her case is perhaps illustrative of the continued need for advocacy in raising awareness about the Court and on the concrete impact of its judgments. She brought her case to Strasbourg completely by chance. Moreover, post-judgment, its effects have been kept to a minimum domestically and outside the borders of Switzerland. In Switzerland and in Israel, regardless of the ECtHR’s ruling, she is an abductor who wrongfully removed her son. From the perspective of these legal systems, she did not put forth any convincing justification for her actions. Unfortunately for her, due to the reasoning of the ECtHR, further redress was not possible. This means that Noam cannot yet go to Israel, a country he is deeply connected to and which Ms Neulinger would dearly like to show to him. Ultimately perhaps this indicates that the inflexibility of the legal systems resulted in a practical impossibility for a child to have links with his country of origin, which is precisely what the Hague Child Abduction Convention sought to prevent.
 I would like to thank Prof Gian Paolo Romano from the University of Geneva who organized the meeting with Ms Neulinger and who was also present during the interview. This meeting would not have happened had it not been for his facilitation.