GODELLI v. ITALY

1. EUROPEAN COURT OF HUMAN RIGHTS GODELLI v. ITALY STRASBURG 25. September 2012 Camilla Di Liberto Martina Balazova Martina Folini Sonya Musa Alice Suardi

2. THE CIRCUMSTANCES OF THE CASE The applicant was born on 28° March 1943 in Trieste, and abandoned by her mother at birth. Her certificate birth records that her mother did notconsent to be named. After some years in a orphanage, the applicant was adopted by Mr and MrsGodelli, under simple adoption.

3. THE CIRCUMSTANCES OF THE CASE 2006 Trieste Register Office, that gave her the birth certificate, on which her birth mother’s name did not appear 2007 Trieste City Court, that declined jurisdiction and dismissed the application 2007 Trieste Family Court, that in 2008 dismissed her application since she was prohibited from gaining access to information about her origins because her mother had not agreed to have her identity disclosed

4. THE CIRCUMSTANCES OF THE CASE 1. Family Court hadcorrectlyappliedthe Domestic Law, 2. Prohibition to accessto information aboutheroriginsalsoserved a public interest. The applicant appealed to the Court of Appeal, which dismissed her appeal by decision of 23° December 2008 stating that: The applicant did not lodge an appeal on point of law. 2009 ECHRagainst the Italian Republic, under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedom stating that there has been a violation of Art. 8

5. RELEVANT DOMESTIC LAW ART. 250 Civil Code One of the parents may decide to not recognize his or her child. In order to exercise this right the mother must request to the hospital to keep her identity secret. Section 27 of Law no. 184/1983guarantees the right to keep a child’s origins secret in the absence of express authorization by the judicial authority. Judgment of 16 November 2005the Constitutional Court held that withholding information about a child’s origins without first verifying whether the mother still did not whish to be identified was compatible with Articles 2, 3 and 32 of the Constitution.

6. Appeal to the European Court Ms. Anita Godelli - The applicant Complained of her inability to obtain information about her birth family Maintained that she had suffered severe damage as a result of not knowing her personal history Complained that, the legislature had given preference to the mother’s interests Submitted that she had been the subject of a simple adoption order, which had not created an effective family relationship She relied on Article 8 of the Convention

7. Appeal to the European Court • Ms. Anita Godelli • The opportunity to appeal to the Court of Cassation, as reported by the Italian Government claim, was not effective: • The current process had not reached a final decision • The appeal to the Court of Cassation is admissible only with regard to final assessment of inferior domestic law Italian Government The appeal embraced by Godelli is not admissible: • Internal legal path of appeal has not reached the final stage • Godellididn’t appeal to the Court of Cassation towards which she could ask to assess the legitimacy of the judicial decision in conformity with the art. 111 of the Italian Constitution and may reach re-trials authorization

8. Article 8 of the European Convention on Human Rights Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

9. On violation of art. 8 of the Convention • Anita Godelli • Everyone’s right to their personal historyand family life • Convention applied to both the child and the mother • Italian system should struck a reasonable balance between the competing rights and interests • Italian Government • No violation has occurred: • Godelli has no actual family affiliation with her natural mother • Since the art. 8 presume an actual relationship between family member, it could not be adopted

10. On the merits • Anita Godelli • No other legislative system protected the mother– giving birth anonymously, abandoning the child anonymously • REC 1443 (2000) “International adoption: respecting children’s rights”: “ensure the right of adopted children tolearn of their originsat the latest on their majority and to eliminate from national legislation any clauses to the contrary”(Parliamentary Assembly of the Council of Europe) • Italy had exceeded the limits of the Article 8 – the system in place did not take account of the child’s interests • Italian Government • The Domestic law was aimed at giving balance between two private interests entered into conflicts • Late petition: the applicant could have claimed her origins in 1983 instead of waiting until 2006 • No effective risks for the applicant or for the current family health

11. The Court’sassessment (1) the mother has the right to remain anonymous the child has a right to know its origins • Article 8 has negativeand positive implications • and there must be a fair balance between the competing interests the States must reconcile the protection of the mother and the legitimate request of the applicant to have access to information about her origins while protecting the general interest

12. The Court’sassessment (2) • The right to an identity is part of the notion of private life BUT the applicant’s request was totally refused without any balancing of the competing interests • Italian law does not allow a child who was adopted to request access to non-identifying information concerning his/her origins or the disclosure of the mother’s identity • The Italian authorities failed to strike a balance and achieve proportionality between the interests at stake VIOLATION OF ARTICLE 8 • ApplicationofArticle 41 of the Convention  just satisfaction to the injured party

13. DISSENTING OPINION OF JUDGE SAJO Domestic authorities being afforded the appropriate measure to ensure the balancing process Legislature on anonymity goes beyond the scope of Art. 8 as it serves the RIGHT TO LIFE The Court’s task is not to review the relevant legislature or practice in the abstract and also not to substitute itself for the national authorities in determining the most appropriate forces for regulating matters of anonymous births According to Judge Sajo, the applicant’s late request for maternal information was not a critical situation as it will have no effect on her personal development.

14. COURT’S FINAL JUDGMENT • Declaresthe appeal admissible • Declares, by six votes to one, that there has been a violation of Article 8 of the Convention • Reparationprovided by the Italian authorities to the applicant for damages and expenses incurred during the legal process • All the issues such as repealing the legislatures on anonymity, thatwerepresented to the court besides the violation of the Article 8 were rejected