May 05, 2021
Francesco Luigi Gatta, Research Fellow, UCLouvain, EDEM
The case Terna v. Italy (application no. 21052/18) concerns the non-enforcement of a grandmother’s right of access to her granddaughter, who belongs to the Roma ethnic group. It touches upon two serious issues in Italy: visiting rights and Roma discrimination. With the judgment delivered on 14 January 2021, the European Court of Human Rights (ECtHR) found a violation of Article 8 of the European Convention on Human Rights (ECHR) due to the national authorities’ failure to ensure the grandmother’s visiting rights. Going beyond the specific case, moreover, the Court explicitly acknowledged the existence of a systemic problem, since Italy has a long history of delays, disorganisation and judicial decisions left unexecuted when it comes to family issues and access rights. Terna only represents the tip of the iceberg.
On the other hand, the Court excluded a violation of Article 14 of the Convention with regard to the alleged discriminatory treatment suffered by the Roma family in the instant case. Yet, this finding should not distract the attention from the issue of discrimination and marginalisation of Roma people, which may be equally “systemic” (in Italy, as well as in Europe).
This blogpost addresses the case Terna v. Italy, focusing on both the relevant issues of visiting rights and Roma discrimination. After an overview of the factual background of the case and of the Court’s judgment, it then discusses why and how the existence of a systemic problem in Italy was declared with regard to visiting rights and Article 8 ECHR, but excluded in respect of Article 14 and discrimination of Roma people.
Facts, complaints and procedure in Strasbourg
The applicant, Ms Terna, is an Italian national who married S.T., a man belonging to the Roma ethnic group. Between 2010 and 2014, the couple was convicted for various criminal charges, including drug trafficking and trafficking in human beings. S.T. had two daughters, one of which gave birth to a baby girl in 2010. The mother entrusted S.T. and his wife, Ms Terna, to care for the child, being unable to do so herself. The baby girl, thus, grew up with her grandparents. She had no identity document and was “invisible” until 2014 when Ms Terna contacted the social services, asking for support in order to enrol the granddaughter in school. This request triggered a multi-year, intricate spiral of reports, proceedings, judgments, and a complex interaction with social services, courts, psychologists and experts.
Initially, the domestic authorities acknowledged the baby girl’s attachment to her grandparents, and their capability to satisfactorily take care of their granddaughter. In 2016, the court deprived the child’s parents of their parental responsibility, entrusted custody of the child to the municipality and confirmed her placement with Ms Terna. A guardian was appointed for the child, as well as an expert, in order to evaluate and monitor the family’s situation. The subsequently realised expert report depicted a complicated scenario: The child’s grandfather was in prison, while Ms Terna, her grandmother, had various criminal records, no parental skills, was unemployed and in a difficult financial situation; the child displayed developmental problems such as delayed language acquisition and attachment issues. In light of these considerations, it was recommended to place the child in a foster family and/or in a children’s home, while maintaining contact with Ms Terna. With regard to this latter point, the child’s guardian expressed doubts, highlighting the risk of the child being abducted by her Roma family.
By means of a following decision, the court ordered the child’s placement in a children’s home and instructed the social services to manage the contacts between Ms Terna and her granddaughter. The child’s guardian, however, requested that the court-ordered meetings be suspended, highlighting once again, the “strong probability” that the child’s Roma family would take her away by force, if they would find out where the little girl was placed (§27). The guardianship judge subsequently ordered to suspend the meetings, and re-arrange them in a protected settings, if necessary, with a police presence, and to keep the location of the child’s placement unidentified.
Despite a following court’s decision confirming the maintenance of contact between the child and Ms Terna – in accordance with the new security arrangements – the meetings never took place. Psychological and expert reports followed, containing contradictory statements: On the one hand, they described the repercussions on the child’s well-being of the interruption of contact with her grandmother; on the other, the reports pointed to a lack of consequences for the little girl, who was already well integrated in the new family.
In 2018 – years after her last contact with Ms Terna – the child was declared available for adoption. Among the reasons behind this decision, the court highlighted that the child grew up in a “criminal environment”, which was persisting at the time, given Ms Terna’s criminal record and the fact that she had continued to “visit her husband in prison”, thereby showing her intention “not to distance herself from his criminal activity” (§36). Ms Terna appealed against that decision. In 2019, the court of appeal ordered a new expert report, which indicated that there were no justified grounds for the child’s removal from her grandmother, who was adequately fulfilling her role.
Ms Terna lodged an application to the ECtHR invoking a violation of the right to respect for family life (Article 8), due to the failure to enforce her visiting rights as established by domestic courts. She further complained of the discriminatory treatment by the judicial authorities, allegedly resulting from the child’s Roma ethnicity (Article 14, in conjunction with Article 8). Finally, she also invoked a violation of the right to an effective remedy (Article 13). The European Roma Rights Centre (ERRC) intervened in the case as third party, in support of the applicant.
The ruling of the Court
The Court reiterates its consolidated principles regarding the protection of family life. Article 8 does not only entail negative obligations (protection against arbitrary and unlawful interferences by public authorities), but also positive ones: Imposing a duty on the State to proactively act in order to secure the enjoyment of family rights. Positive obligations under Article 8 require the State to be prepared for a metaphorical “war” and to set up an adequate “arsenal” of legal measures (“arsenal juridique”, §60). The keywords for the State’s conduct regarding positive obligations under Article 8 include “vigilance” (§60), “prudence” (§62), “diligence” (§73), “rapidity” (§65), “adequacy and specificity” of the measures taken (§60).
The Court rules that, although the legal “arsenal” provided by Italian law appears adequate for the purpose of the positive obligations stemming from Article 8, such legal means have been poorly applied in Terna. Accordingly, a violation of Article 8 is found, based on the applicant’s inability to exercise her right of access to her granddaughter despite the decisions of the domestic courts. The delays in the implementation of the visiting rights led to the “tolerance” of a de facto unlawful situation in breach of a court’s order, ignoring the long-term repercussions linked to the separation of the applicant from her granddaughter. The Court, however, finds that such situation did not result from a stigmatisation of the Roma ethnic background of the applicant’s family. Accordingly, in the absence of any discriminatory treatment, it excludes a violation of Article 14.
The role of grandparents and the right of contact as a key for their “family life”
The relationship between grandparents and grandchildren may fall well under the notion of “family life” within the meaning and for the purposes of Article 8. This acknowledgement goes quite back in time in the Strasbourg case-law: As early as Marckx v. Belgium in 1979, did the Court not only recognise that “family life… includes at least the ties between near relatives, for instance those between grandparents and grandchildren”, but also and especially stated that grandparents “may play a considerable part in family life” (§45). This has been regularly confirmed in the following decades, including in the case-law on grandparents’ rights where Italy was involved (e.g. Bronda v. Italy, 1998; Scozzari and Giunta v. Italy [GC], 2000; Manuello and Nevi v. Italy, 2015; Beccarini and Ridolfi v. Italy, 2017).
The case Manuello and Nevi, in particular, represents an important turning point, as the Court acknowledged the grandparents-grandchildren relationship to be almost as equally important as the relationship between parents and their children. It held that grandparents enjoy a right to visit per se, autonomously conceived, without making specific and significant references to the best interest of the child in that case. The Manuello and Nevi judgment has been referred to as a leading case by the Advocate General Szpunar in his Opinion in the case Valcheva v. Babanarakis of 2018, addressing, for the first time, visiting rights of grandparents under EU Law. He acknowledged that “contact between grandparents and their grandchildren, in particular in an ever-changing society, remains an essential source of stability for children and an important factor in the intergenerational bond which undoubtedly contributes to building their personal identity” (§32).
Given the importance of the role of grandparents, especially when they are filling the vacuum of parents in the context of difficult family situations, the ECtHR has developed the protection of grandparents-grandchildren relations true to its pragmatic approach, which is based on de facto considerations, rather than legal characterisations. “Family life”, in Strasbourg, is “essentially a question of fact depending upon the real existence in practice of close personal ties” (among others, K. and T. v. Finland, §150; Paradiso and Campanelli v. Italy, §140). Accordingly, grandparents’ rights vis-à-vis their grandchildren are not dependent on parental authority (Nistor v. Romania, §71; Manuello and Nevi, §§50-53), but may exist autonomously. In Terna v. Italy, in particular, “family life” has been recognised although the parents had been deprived of their parental authority, there had never been any official procedure assigning custody to Ms Terna, and despite the fact that the child did not “exist” on paper, since she did not have any identity document during the first years of her life.
Against this background, when it comes to the family life of grandparents, the right of contact with their grandchild plays a crucial role, as it often entails the indispensable medium to enjoy and foster this relationship. While cohabitation is not a prerequisite, “close relationships created by frequent contact” are relevant to build sufficiently close family ties between grandparents and grandchildren (Bogonosovy v. Russia, 2019, §79). The State, therefore, is under the obligation to facilitate visiting rights, deploying all reasonable efforts to that end.
Visiting rights in Italy: a systemic problem
Why had the visiting rights not been implemented in the case Terna? The applicant sustained that her visiting rights had been impaired by a discriminatory attitude against the Roma ethnic background of her family. But for the Court, neither the child’s placement in care, nor the failure to enforce the applicant’s visiting rights had had a discriminatory motivation. The problem lies elsewhere, and is worrisome: Italy suffers from a structural lack of organisation of the domestic authorities in charge of ensuring visiting rights. Delays in arranging contacts, maladministration of social services and non-enforcement of court decisions indicate the existence of a systemic problem in Italy. This important finding of the Court triggers some considerations.
First, the Court indirectly uses the “space” of its judgement dedicated to the analysis of the complaint about an alleged racial discrimination (Article 14) to denounce the existence of a systemic problem related to the protection of family life (Article 8). This is not unintentional, but rather a clear choice, an expedient that enables the Court to reveal the systemic nature of the problem. The Court’s argument may be expressed as follows. There is no real differential treatment in Ms Terna’s case, as in Italy, persons in analogous or relevantly similar situations would equally encounter delays, obstacles, and lack of proper assistance by domestic authorities, regardless of their ethnic origin. The problem is systemic and, as such, affects potentially everyone.
Second, the systemic character of the problem is acknowledged on the basis of the Court’s own case-law concerning litigation against Italy on visiting rights. Ms Terna’s case, in other words, is just the tip of the iceberg, unveiling a structural problem witnessed by a wide array of previous, similar and equally problematic cases. But how and when does an issue become systemic? It is interesting to note here how the Court “measures” the systematicity of the problem. When revealing the existence of a “problème systémique” in Italy (§97), it explicitly mentions 7 cases: Piazzi v. Italy (2010), Lombardo v. Italy (2013), Nicolò Santilli v. Italy (2013), Bondavalli v. Italy (2015), Strumia v. Italy (2016), Solarino v. Italy (2017), Endrizzi v. Italy (2017). This list leads to some remarks.
First, from a quantitative point of view, the Court builds its acknowledgement of a systemic problem on 8 cases (the 7 mentioned in the list, plus Terna). Second, the chronological characterisation of the Italian systemic problem covers more than one decade, ranging from Piazzi (2010, lodged in 2009) to Terna (2021, lodged in 2018). Qualitatively, the list is to be considered not exhaustive, but, rather, as containing only some illustrative examples. How have the cases been selected? Their common denominator lies in the fact that they all concern visiting rights, judicially established and regulated, but left unimplemented. Yet, the cases chosen by the Court do not specifically concern grandparents’ rights (apart from the case Terna itself), despite the existence of quite some relevant precedents in this regard. A bit surprisingly, for example, is the fact that the judgment Manuello and Nevi v. Italy is not included, despite it being the leading Italian case on visiting rights of grandparents and displaying similar factual circumstances (in Manuello and Nevi the grandparents were unable to see their granddaughter for about 12 years). Similarly Beccarini and Ridolfi v. Italy did not make it to the list, although this case concerned grandparents who had not seen their grandchildren for 5 years (compare to Terna where the lack of contact lasted for 3 years).
The fact that the case-law on grandparents has been left out could possibly be explained because the Court, in principle, considers the “family life” between grandparents and grandchildren as different in nature from that of parents and children. The degree of protection is also different, the former relationship enjoying in principle lesser protection (Kruškić v. Croatia [dec.], §§108-110; Mitovi v. The Former Yugoslav Republic of Macedonia, §58). However, since the problem of visiting rights in Italy is systemic, the list of cases could have included at least one case on grandparents, to show that the issue affects various family ties.
A final consideration is linked with the Court’s choice not to examine the applicant’s complaint under Article 13 of the Convention. One might have expected that the same existence of a systemic problem regarding the lack of implementation of domestic judgements would have equally led to a violation the right to an effective remedy, which was also invoked by Ms Terna. How there could possibly be an effective remedy to a certain issue, if this same issue represents a systemic problem? The Court, however, did not consider it necessary to examine the complaint, given the fact that it already found a violation of Article 8.
Discrimination against Roma: Another (hidden) systemic problem?
Another systemic issue is mentioned in the case Terna: Discrimination against Roma. According to the applicant, the breach of her visiting rights resulted from stigmatisation of her family’s ethnicity. In particular, the continuing reference by domestic authorities to the “criminal environment” surrounding the family, together with the insistence on the highly probable (although, in concreto, unsubstantiated) risk of abduction of the child, represented a decisive factor in the interruption of the contacts with her granddaughter.
The ERRC, intervening as third party, raised similar issues. It referred to the existence of an “institutional antigitanism” in the Italian social system (§90), and reflected upon the widespread and consolidated discriminatory attitudes within the Italian social services. It also argued that, given the existence of a stereotypical narrative about this ethnic group (Roma = criminal), many Roma children would be channelled in adoption procedures and taken away from their original families, as this would be considered an unsafe and/or inadequate environment for their development.
The Court does not engage with the issue, and does not push itself further than recognising that, during the domestic proceedings, there had indeed been deplorable considerations by the guardian regarding the Roma origin of the family. These considerations are referred to by the Court as “a sign of prejudice, which cannot be regarded just as an unfortunate expression, but deserve serious criticism” (§99). However, this is not enough for the judges to conclude that the prohibition of discrimination had been breached.
While in this specific case the Court did not pronounce itself on the matter, in general the fast-growing case-law on Roma before the Court can be seen as a worrying trend. It covers a wide array of issues, ranging from destruction of houses and encampments, to policy brutality, from school segregation of Roma children, to hate crimes and racist verbal abuse, just to mention few examples. Criminalisation of poverty and imprisonment for begging is another recent, telling case (Lăcătuş v. Switzerland, for a commentary see here and here).
The Grand Chamber, in particular, recognised that “as a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority”, adding that, “they therefore require special protection” (D.H. and Others v. the Czech Republic, §182). Within the Council of Europe such considerations have also been reiterated, on several occasions, by the Parliamentary Assembly and the Committee of Ministers, especially with the Strategic Action Plan for Roma and Traveller Inclusion for 2020-2025. Most recently, the commitment to the protection of rights of Roma has been reaffirmed on the occasion of the 50° anniversary of the International Roma day, on 8 April 2021.
Yet, as data show (e.g. EU Agency FRA, reports 2016, 2018 and 2019), Roma are among the most marginalised and persecuted groups in Europe, and anti-Roma attitudes are on the rise. Widespread stereotypes and prejudices show that the discrimination of Roma is indeed a systemic issue, although sometimes taking place in a more devious or hidden way. In order to turn the tide, States will need to improve and better apply their “arsenal” of measures, ensuring, as the ECtHR demands, special protection for Roma people. The Court of Strasbourg, for its part, will have to exercise extra vigilance with regard to this issue.