Communicated on 5 July 2016
THIRD SECTION
Application no. 60399/15
Rafat MANSOUR
against Slovakia
lodged on 30 November 2015
STATEMENT OF FACTS
1. The applicant, Mr Rafat Mansour, is a Slovak national who was born in 1972 and lives in Dublin, Ireland. He is represented before the Court by Ms I. Kalinová, a lawyer practising in Bratislava, Slovakia.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant married a Slovak national in 2004 and the couple settled in Ireland. Their two children, born in 2006 and 2008, are both Irish nationals.
4. On 6 January 2011 the mother travelled to Slovakia with their two children, and they have not returned to Ireland since.
1. Proceedings on return
5. On 31 January 2011 the applicant commenced proceedings in the Slovakian courts for the return of his children to Ireland under the Council Regulation (EC) No 2201/2003 of 27 November 2003 (“the Brussels II bis Regulation”) and the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
6. On 1 July and 26 October 2011 respectively, the Bratislava I District Court and, following an appeal by the mother, the Bratislava Regional Court ordered the return of the children to Ireland as their country of habitual residence. The courts further ordered the applicant to provide accommodation for the mother and the children. They also ordered the applicant to make monthly child maintenance payments amounting to 500 euros (EUR) until the custody proceedings had been finalised by the Irish authorities.
7. The return order became enforceable on 8 July 2011.
2. Enforcement proceedings
8. On 6 February 2012 the applicant applied for judicial enforcement of the return order.
9. On 9 February 2012 the Michalovce District Court attempted to have the mother comply voluntarily with the order. In response, the mother informed the District Court that she had lodged a request with the Prosecutor General for him to exercise his discretionary power to challenge the return order by way of an extraordinary appeal on points of law (mimoriadne dovolanie). On 26 March 2012 the District Court stayed the enforcement proceedings on the return order pending the outcome of the mother’s request to the Prosecutor General.
10. On 14 August 2012 the District Court resumed the enforcement proceedings after the Prosecutor General found there were no reasons to lodge an extraordinary appeal on points of law.
11. On 18 October 2012 and 26 June 2013 respectively, the District Court and, following an appeal by the applicant, the Košice Regional Court found that the return order was not enforceable and halted the enforcement proceedings.
12. The enforcement courts based their conclusion on the following two grounds.
Firstly, they concluded that a previous decision on provisional measures, which had been delivered by the Michalovce District Court on 16 May2011, already existed. That decision had temporarily entrusted the children to the care of the mother and required the applicant to pay child maintenance in the meantime. Those temporary custody rights were to be determined later by the competent courts in Ireland.
Secondly, the return order, which had been delivered after the decision on provisional measures, had failed to specify that the mother was bound by such an order and to give a precise time frame for its implementation.
Given the fact that the mother had not been specifically ordered to comply with such a judgment and that the father had not been provisionally entrusted with the care of the children, the order could not be enforced.
3. Follow-up proceedings
13. Following the unsuccessful enforcement proceedings, the applicant turned to the same court which had delivered the return order, the Bratislava I District Court. He referred to the shortcomings of the order highlighted by the enforcement courts and asked the court to specify which person was bound to comply with such an order and to provide a time frame for the return of the children. The District Court concluded that the applicant’s action was res iudicata and dismissed it on 6 November 2014.
4. Constitutional proceedings
14. In the meantime, on 22 October 2013, the applicant had challenged the enforcement courts’ decisions of 18 October 2012 and 26 June 2013 by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).
15. On 9 July 2014 the Constitutional Court declared the complaint admissible. On 27 May 2015 it gave judgment and found that the Košice Regional Court had violated the applicant’s rights, as specified below.
16. In particular, it found a violation of the applicant’s rights under Articles 19 § 1 (family life), 41 § 1 and § 4 (protection of parenthood and children, right to child care), and 46 § 1 (judicial protection) of the Constitution, and under Article 6 § 1 (fairness) and Article 8 (family life) of the Convention.
17. The Constitutional Court found that the Regional Court’s decision had been taken on purely formal grounds, and had been arbitrary and in contravention of the Code of Civil Procedure, the Brussels II bis regulation, the Hague Convention and the Constitution. The Regional Court’s arbitrary decision had meant that the positive obligations guaranteed by Article 8 of the Convention and the applicant’s parental rights had been breached as well.
18. Consequently, the Constitutional Court quashed the disputed decision and remitted the applicant’s appeal to the Regional Court for re‑examination. It ordered the Regional Court to reimburse the applicant’s legal costs. It also awarded the applicant just satisfaction in respect of non‑pecuniary damage of EUR 3,000.
19. The judgment was final and not amenable to appeal.
5. Current state of the enforcement
20. The proceedings are pending before the Regional Court.
B. Relevant domestic and international law
21. The relevant provisions of the Hague Convention, the United Nations Convention on the Rights of the Child, the Charter of Fundamental Rights of the European Union and the Council Regulation (EC) No 2201/2003 of 27 November 2003 were summarised in the Court’s judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 34-42, ECHR 2013). Further relevant domestic provisions are summarised in Frisancho Perea v. Slovakia (no. 383/13, §§ 32-34, 21 July 2015); Hoholm v. Slovakia (no. 35632/13, §§ 29-34, 13 January 2015); and López Guió v. Slovakia (no. 10280/12, §§ 57-60, 3 June 2014).
COMPLAINTS
22. The applicant complains under Article 8 of the Convention that the enforcement courts have failed to secure respect for his family life. He alleges that the proceedings to enforce the return order frustrated the entire purpose of proceedings under the Brussels II bis Regulation and the Hague Convention and that, as a result, he has been prevented from exercising his parental rights for a protracted period of time.
QUESTIONS TO THE PARTIES
1. In view of the Constitutional Court’s judgment, can the applicant still claim to be a victim of the alleged violation of the Convention, within the meaning of Article 34?
2. Has there been a violation of the applicant’s right to respect for his family life, contrary to Article 8 of the Convention?
In particular, in view of the course and current state of the proceedings on returning the children, including the enforcement phase, and especially in view of the crucial importance of the passage of time, has the respondent State discharged its positive obligation to secure the applicant practical and effective enjoyment of his right to respect for his family life, interpreted in light of the Brussels II bis Regulation and the Hague Convention?
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