Facts
The husband (complainant) and the wife (respondent) had been living separately since 1969. The wife had filed for divorce in May 1970, but the court had not yet taken any precautionary measures under Art. 145 of the Swiss Civil Code, except for a partial decision of 14 September 1970 on the children's stay with the father during the All Saints' and Christmas holidays.
In May and June 1971, the parties' lawyers exchanged several letters about the father's right of access, as he wanted to have the children with him for part of the summer holidays. Despite the difficulties raised by the mother, the father had flight tickets sent to the mother's lawyer on 28 June so that the children could come to Paris, where he would be waiting for them. In a letter dated 29 June, the mother's lawyer raised several objections and informed the husband's lawyer that his client would immediately depart with the children to Portugal.
Based on these facts, the husband filed a criminal complaint against his wife for child abduction. The investigating judge of the District of Lausanne refused on 5 August 1971 to follow up on the complaint, as the file did not show that the accused had refused to hand over the children to their father. It seemed to be a misunderstanding, as the handover of the children, to which she had agreed for the period from 25 June to 14 July, could not take place due to extensive correspondence between the lawyers.
The complainant appealed against this decision, which the Indictment Chamber dismissed on 14 September 1971. It stated that, since the civil court had not yet decided on the exercise of parental authority during the divorce proceedings, the parent with whom the children were staying or who exercised parental authority over them had parental power. In the present case, this was the mother, who therefore could not have been guilty of child abduction, as only the parent to whom the children were not entrusted could have violated Art. 220 of the Swiss Criminal Code.
Considerations
The Federal Court states that Art. 220 of the Swiss Criminal Code punishes the person who removes a minor from the person who, in particular, exercises parental authority, or refuses to return the child. Although the right of access is part of the personal rights, it is not necessarily an attribute of parental authority, which continues even after the divorce (Art. 156 para. 3 and 274 para. 3 of the Swiss Civil Code).
However, parental authority not only gives the right to raise a child, but also the power to decide on his or her fate, even if the holder does not exercise custody. This right gives the holder of parental authority the ability to determine when and where he or she wants to see the child, and to invoke…