L.G.R. AND A.P.R. v. SLOVAKIA

THIRD SECTION

Application no. 1349/12
L.G.R. and A.P.R.
against Slovakia
lodged on 6 January 2012

STATEMENT OF FACTS

1. The first applicant is a British national, who was born in 2006 and presently stays in Bratislava (Slovakia). The application has been submitted on his behalf by his father, the second applicant, who has parental responsibility for the first applicant as a matter of English law. The second applicant is also a British national. He was born in 1965 and lives in Newton St. Cyres (England).

The applicants are represented before the Court by Mr A. Weiss of the Aire Centre, a non-governmental organisation based in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Factual background

2. In 2006, prior to the first applicant’s birth, the second applicant married the first applicant’s mother, a Slovak national. The family lived in England.

3. On 24 July 2007 the mother informed the second applicant that she and the first applicant would not be returning from holiday in Croatia to the United Kingdom and that she intended to take the first applicant to Slovakia and settle there permanently.

4. On 13 August 2007 the mother and the first applicant, who was then less than 1 year old, travelled to Slovakia and have not returned to the United Kingdom since.

5. On 10 November 2009 an English court granted the couple divorce and it was finalised on 6 January 2009.

2. Hague Convention proceedings

6. On 7 November 2007 the second applicant commenced proceedings in the Slovakian courts for return of the first applicant to England and Wales under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

7. On 14 December 2007 and 31 March 2008, respectively, the Bratislava II District Court (Okresný súd) and, following the mother’s appeal (odvolanie), the Bratislava Regional Court (Krajský súd) ordered the return of the first applicant to England and Wales as the country of habitual residence.

It was emphasised that the order did not imply that the first applicant reside with either parent but merely that status quo ante be restored so that questions of custody and access might be determined by the English courts which had jurisdiction over them. The return order became enforceable on 9 June 2008.

8. On 22 December 2008 the Prosecutor General acceded to a petition by the mother and exercised his discretionary power to challenge the return order by way of an extraordinary appeal on points of law (mimoriadne dovolanie). It was argued that the courts had failed to establish properly whether the first applicant had been wrongfully removed or retained and whether there were grounds for not ordering the first applicant’s return under Article 13 of the Hague Convention. At the same time, the Prosecutor General suspended the enforceability of the return order.

9. On 4 February 2009, in response to an enquiry on the second applicant’s behalf, the President of the District Court informed the office of the President of Slovakia on the state of the proceedings. She added the following comment:

“It does not behove me to judge the actions of the Office of the Prosecutor General. I am not privy to the reasons why an extraordinary appeal on points of law was lodged. I detect a problem in the system, which allows for such a procedure even in respect of decisions on return of minor children abroad (‘international child abductions’). Irrespective of the outcome of the concrete case, the possibility of lodging an appeal on points of law and an extraordinary appeal on points of law in cases of international child abduction protracts the proceedings and suppresses the object of the [Hague Convention], which is as expeditious a restoration of the original state as possible, that is to say the return of the child to the country of habitual residence within the shortest possible time.”

10. On 30 June 2009 the Supreme Court (Najvyšší súd) quashed the return order and remitted the matter to the first-instance court for re‑examination.

11. On 29 March 2010 the District Court dismissed the second applicant’s application for the return of the first applicant. Relying on Article 13 of the Hague Convention, the District Court observed that the first applicant had been living in Slovakia for two and a half years and that the first applicant had developed ties with the environment there. The return of the first applicant was thus “not in the interest of the child and its healthy mental development”.

12. On 25 August 2010 the Regional Court quashed the decision of 29 March 2010 following the second applicant’s appeal and remitted the case to the first-instance court. The Court of Appeal found that the District Court had failed to provide adequate reasons for its decision.

13. On 8 November 2010 and, respectively, 15 March 2011, the District Court and, following the mother’s appeal, the Regional Court again ordered the return of the first applicant to England and Wales. The courts found that the second applicant had shown that appropriate measures had been taken to secure the first applicant’s rights and interests after his return and that the mother had failed to show that the return of the first applicant was contrary to the Hague Convention.

14. On 11 April 2011 the mother lodged an appeal on points of law (dovolanie) and subsequently requested that the enforcement of the return order be suspended.

15. On 22 June and 4 November 2011, respectively, the District Court called upon the mother and interviewed her and the second applicant with a view to having the return order complied with, to no avail.

16. Following the interview of 4 November 2011, on the same day, the District Court dismissed the mother’s request that the enforcement be suspended. The mother appealed.

17. On 15 November 2011, following the mother’s petition, the Prosecutor General informed her that he had no intention of challenging the new return order by an extraordinary appeal on points of law.

18. On 12 December 2011, following the mother’s appeal on points of law, the Supreme Court quashed the Regional Court’s decision of 15 March 2011 to dismiss her appeal against the new return order and remitted the appeal to the Regional Court for re-examination. It held that the latter had failed to provide adequate reasons for dismissing the mother’s arguments under Article 13 of the Hague Convention.

19. The proceedings are still pending.

3. Proceedings in English courts

20. Meanwhile, on 24 July 2008 and 3 February and 1 October 2009 the High Court of Justice of England and Wales issued three orders to the mother to return the first applicant to the jurisdiction of England and Wales. At the same time, it issued certificates pursuant to paragraph 41 of the Brussels II bis Regulation (see below) providing the second applicant with rights of access to the first applicant in Slovakia.

4. Contact between the applicants

21. Since the first applicant was taken to Slovakia, the applicants have had intermittent contact. While the second applicant has been able to visit the first applicant, the mother has often obstructed his visits.

22. On 17 July and 24 August 2009, respectively, the District Court and, following the mother’s appeal, the Regional Court ordered the mother to facilitate contact between the applicants. However, the second applicant continues experiencing difficulties seeing the first applicant.

B. Relevant domestic, international and European Union law

23. The relevant provisions concerning appeals on points of law are summarised for example in the Court’s decision in Ringier Axel Springer Slovakia v. Slovakia (no. 35090/07, §§ 65-8, 4 October 2011, with further references). Appeals on points of law have not automatic suspensive effect, the power to suspend of the enforceability of the impugned decision being entrusted to the Court of Cassation (Article 243 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended)).

24. By way of an extraordinary appeal on points of law, the Prosecutor General has the power to challenge final and binding judgements and decision of the courts upon petition of a party to the proceedings or a person concerned, provided that the impugned judgment or decision contravenes the law, that the protection of the rights and interests of individuals, legal entities or the State so requires, and that such protection cannot be obtained by other legal means (Article 243e § 1 of the Code of Civil Procedure).

25. The Prosecutor General may suspend the legal effect of the impugned decision for up to one year unless the Court of Cassation decides otherwise (Article 243ha of the Code of Civil Procedure).

26. The relevant rules of international law are summarised for example in the Court’s judgment in the case of Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 48 et seq., ECHR 2010), the Convention on the Rights of the Child of 20 November 1989 having entered into force in respect of Slovakia on 6 February 1991 (Notice of the Ministry of Foreign Affairs no. 104/1991 Coll.), and the Convention on the Civil Aspects of International Child Abduction of 25 October 1980 having entered into force in respect of Slovakia on 1 February 2001 (Notice of the Ministry of Foreign Affairs no. 119/2001 Coll.).

27. The relevant provisions of the Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility are summarised for example in the Court’s judgment in the case of Karrer v. Romania (no. 16965/10, § 21, 21 February 2012 (not final yet)).

COMPLAINTS

28. The applicants complain under Articles 6 § 1 of the Convention that the Slovakian authorities:

(i) have failed to act expeditiously,

(ii) have failed to enforce the order for the first applicant’s return, and

(iii) have thereby deprived them of the possibility of having matters concerning custody and access in respect of the first applicant determined by the courts of England and Wales, which were the only courts with jurisdiction over such matters.

29. The applicants also complain under Article 8 of the Convention that the failure to order definitively the return of the first applicant to the country of habitual residence constituted an interference with their right to respect for family life and a failure by the Slovakian authorities to respect their positive obligations towards them under that Article. Although their omission may have pursued a legitimate aim, it was neither in accordance with the law, which in Slovakia lacked the adequate quality, and nor was it necessary in the democratic society.

QUESTIONS

1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, in view of the alleged systemic nature of the matters complained of and the fact that the alleged violations stem directly form the law, was a complaint under Article 127 of the Constitution an effective remedy within the meaning of this provision?

2. Was the length of the proceedings for return of the first applicant under the Hague Convention in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, in view of the practical effect for the applicants of the proceedings before the Slovakian courts under the Hague Convention, including their enforcement phase, has the applicants’ right of access to a court been respected?

4. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention?

In particular, in view of the course, length, current state and final outcome (if any) of the proceedings for the return of the first applicant, including the enforcement phase, and the particularly crucial importance of the passage of time in cases such as the present one, has the respondent State discharged its positive obligation to secure the applicants practical and effective enjoyment of their right to respect for their family life, interpreted in the light of the Hague Convention?

Has the way in which the Slovakian authorities handled the proceedings under the Hague Convention, including their enforcement phase, been in accordance with law and necessary in a democratic society within the meaning of Article 8 of the Convention? Has the quality of the relevant domestic law been compatible with the requirements of that Article?

 

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