Communicated on 9 June 2016
FOURTH SECTION
Application no. 10926/09
Michael RINAU and Luisa RINAU
against Lithuania
lodged on 24 February 2009
STATEMENT OF FACTS
1. The first applicant, Mr Michael Rinau, is a German citizen who was born in 1969. The second applicant, Ms Luisa Rinau, is his daughter, who was born in 2005. She has dual citizenship – German and Lithuanian. Both applicants live in Bergfelde, Germany. They are represented before the Court by Ms N. Bumlein, a lawyer practising in Berlin.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. In July 2003 the first applicant married a Lithuanian citizen, I.R. They lived in Bergfelde, Germany, where their marriage was registered. The spouses also chose German law to be applicable to their marriage.
4. From a previous marriage I.R. had an older son, E.M., who was born in 1992.
5. On 11 January 2005 a daughter, Luisa (the second applicant), was born to the couple. Parental responsibility was exercised jointly by both parents. In the course of March 2005 the spouses began living separately. The child remained with her mother but maintained frequent contact with her father. At a later stage, divorce proceedings were initiated before the Oranienburg District Court (Amtsgericht Oranienburg) in Germany.
6. In May 2005 the second applicant was issued with a German passport.
1. Proceedings under the Hague Convention on the Civil Aspects of International Child Abduction
7. On 21 July 2006, the first applicant agreed that his wife could take their daughter to Lithuania for two weeks’ holiday, on condition that she return to Germany by 6 August 2006.
8. When the child and mother did not return to Germany, the first applicant started court proceedings in Germany. An arrest warrant in respect of I.R. was issued by the German authorities.
9. On 14 August 2006 the Oranienburg District Court terminated the mother’s joint custody of their daughter and awarded provisional custody to her father until the divorce proceedings were completed. The German court also granted the first applicant the exclusive right to decide on issues relating to his daughter’s passport.
10. That decision was upheld by the Brandenburg Regional Court (Oberlandesgericht) on 11 October 2006, which dismissed an appeal by I.R.
11. On 30 October 2006 the first applicant asked the Klaipėda Regional Court, Lithuania, for a permit allowing him to take his daughter back to Germany. He relied on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, and also on Council Regulation (EC) No. 2201/2003 (the Brussels II bis Regulation).
12. By a ruling of 22 December 2006 the Klaipėda Regional Court refused his request (hereinafter – “the non-return decision”). It held that because of the girl’s bond with her mother and brother, her return to Germany ‒ where her mother might be arrested ‒ could cause the child serious psychological harm. This constituted grounds not to return the child under Article 13 (b) of the Hague Convention.
13. On 10 January 2007 the second applicant was issued with a permit granting her permanent residence in Lithuania. That same month I.R. declared her daughter’s place of residence to be Klaipėda, Lithuania.
14. On 15 March 2007 the Court of Appeal quashed the Klaipėda Regional Court’s decision. The Court of Appeal noted that although I.R. had taken her daughter to Lithuania lawfully, because she had the father’s agreement, her choice not to return the child to Germany and instead to keep her in Lithuania was unlawful both under Article 3 of the Hague Convention and under Article 2 § 11 of EC Regulation No. 2201/2003. The Court of Appeal observed that the criminal proceedings instituted against I.R. for unlawful retention of the child had been discontinued in Germany. There was therefore no reason to believe that, if returned to Germany, the girl would be separated from her mother. The Court of Appeal also pointed out that the proceedings in the Lithuanian courts were concerned only with the return of the child, who was being retained unlawfully in Lithuania and not with questions relating to the child’s custody, such as the possibility of living with her brother or her mother. This was a principle that likewise had its origins in Article 19 of the Hague Convention. Moreover, there was no reason to doubt that a competent court in Germany would be capable of properly evaluating factual circumstances relating to matters of custody. The Court of Appeal observed that a consequence of unlawful removal was that the person with custody rights lost the possibility of exercising those rights in the child’s place of residence. The child, for her part, was deprived of that person’s care. Accordingly, harm was caused to both parties and would continue until a lawful state of affairs was restored.
15. The Court of Appeal also noted that the burden of proof in demonstrating a grave risk that the child’s return would expose her to harm lay with the person who was objecting to the return. In the instant case, although the return of the second applicant might cause her psychological hardship (psichologiniai sunkumai), there was no reason to believe that such hardship would amount to an intolerable situation or exceed the normal distress which the return of a small child to his or her country of origin would cause. Accordingly, there was no reason to apply Article 13 (b) of the Hague Convention.
16. The Court of Appeal then ordered I.R. to return her daughter to Germany by 15 April 2007. In the event of her failure to do that, it would be for a Lithuanian bailiff to transfer the girl to her father in Klaipėda and in the presence of the childcare authorities.
The Klaipėda Regional Court issued a writ of execution (vykdomasis raštas) on 13 June 2007 to the effect that Luisa be transferred to the first applicant, with the assistance of a Lithuanian bailiff.
17. The decision of the Court of Appeal became final, as no appeal on points of law was possible (Articles 337 § 2 and 339 of the Code of Civil Procedure).
18. On 23 April 2007, the Klaipėda Regional Court issued an order suspending enforcement of the Court of Appeal decision. The Klaipėda court accepted a plea by I.R. that she and her son E.M. needed more time to prepare themselves psychologically for Luisa’s return to her father.
19. By a ruling of 4 June 2007 the Court of Appeal quashed that decision. The appellate court noted, on the one hand, that the situation referred to by I.R. – that the girl’s return would be hurtful for I.R. and for her son E.M. ‒ could last indefinitely. On the other hand, there was no evidence that returning the child to her father within the time-limit set earlier would cause her any harm or not be in her interests, nor had this been concluded by the first-instance court. It was of paramount concern to protect the interests of the child, who was being held in Lithuania unlawfully, and any delay in executing the court decision for her return ran counter to the Court’s ample case-law concerning States’ positive obligations in this field.
2. Endeavours by the second applicant’s mother and the Lithuanian Attorney General to have Lithuanian court proceedings reopened
20. On 4 June 2007 and 13 June 2007, respectively I.R. and the Attorney General of Lithuania attempted to have the Lithuanian court proceedings for the child’s return reopened. They argued that in the ruling on 15 March 2007 the Court of Appeal had failed to take into account that there would be a grave risk to the girl’s well-being if she were to return to Germany. By that time she had lived in Lithuania for a considerable time and was integrated into the Lithuanian environment. If she were to be removed from Lithuania, she would lose a stable connection with her mother and be placed in an unfamiliar linguistic environment. I.R. also referred to the state of health of her son, E.M., claiming that he was afraid of losing his mother should she decide to go to Germany with the second applicant.
21. On 19 June 2007, the Klaipėda Regional Court dismissed both applications as unfounded. The court also reiterated that all questions relating to the parents’ divorce and the custody of their daughter fell within the jurisdiction of the Oranienburg District Court. The Court of Appeal upheld Klaipėda court’s decision on 27 August 2007.
22. By means of a written request dated 7 September 2007, five members of the Seimas (the Lithuanian parliament) asked the bailiff in charge of executing the Lithuanian court’s order for the transfer of the girl into her father’s custody to refrain from carrying out that duty. The Seimas members stated that they intended to petition the President of Lithuania and the Lithuanian Minister of Justice, requesting that the girl not be returned to her father.
23. On 21 September 2007, a group of forty-one members of the Seimas asked the Constitutional Court to examine the question of whether Article 2 § 6 of the Lithuanian Law on Implementation of EC Regulation No. 2201/2003 ‒ pursuant to which no appeal on points of law was possible in cases concerning a child’s return effected under that Regulation ‒ contradicted the constitutional principle of the rule of law.
The Constitutional Court initially accepted the request for examination, but in December 2009 discontinued the proceedings because on 13 November 2008 the Seimas had adopted a new Law on the Implementation of EC Regulation No. 2201/2003, and the former law ceased to be applicable (see paragraph 55 below).
24. According to the Lithuanian news agency ELTA, in September 2007 members of the Liberals’ Union (Liberalų Sąjūdis) political grouping in the Seimas asked the President of Lithuania at that time, Valdas Adamkus, to examine the possibility of granting Lithuanian citizenship to Luisa Rinau urgently as an exception.
In autumn 2008 I.R. was registered as candidate No. 30 on the list of the Liberals’ and Centre Union (Liberalų ir Centro Sąjunga) for election to the Seimas.
25. On 15 October 2007 I.R. met the Minister of Justice of Lithuania. The Minister promised her free legal aid in the proceedings concerning her daughter’s return to Germany.
26. By a ruling of 16 October 2007, the Supreme Court’s chamber for the selection of cases to be examined in an appeal on points of law (teisėjų atrankos kolegija) accepted for examination the Attorney General’s appeal on points of law for a reopening of proceedings.
On 19 October 2007 the same Supreme Court chamber also accepted for examination the appeal on points of law by I.R. The chamber pointed out, however, that pursuant to Article 2 § 6 of the Lithuanian Law on Implementation of EC Regulation No. 2201/2003, no appeal on points of law was possible in proceedings involving the return of a child that have been instituted under that Regulation. It followed that there was no legal basis on which to grant I.R.’s request for suspension of the execution of the Court of Appeal ruling of 15 March 2007 ordering her daughter’s return to Germany. The chamber also indicated that its ruling was “final and unappealable”.
27. On 22 October 2007 the Lithuanian Attorney General submitted a fresh request for suspension of execution of the Court of Appeal’s ruling of 15 March 2007.
The same day the President of the Lithuanian Supreme Court adopted a ruling suspending the execution of the Court of Appeal judgment of 15 March 2007 until the Attorney General’s appeal on points of law for the reopening of court proceedings in Lithuania had been examined. The President of the Supreme Court considered that the criteria determining when an appeal on points of law was not possible (the child’s return under Article 2 § 6 of the Law on Implementation of EC Regulation No. 2201/2003) did not automatically preclude an appeal on points of law in respect of a reopening of proceedings. Moreover, Article 372 of the Code of Civil Procedure allowed the suspension of execution of a court’s decision at any stage of the court proceedings (that is to say, also at the stage of an appeal on points of law). The President of the Supreme Court also held that in the instant case relating to the reopening of the civil case concerning the child’s return, it was necessary to suspend execution of the Court of Appeal’s judgment because “the child was a minor, she did not speak German, she was attached to her mother and her brother, and she had spent the majority of her life in Lithuania”. The President of the Supreme Court considered that the child’s return to Germany would cause her great psychological harm.
The first applicant attempted to appeal against the Supreme Court President’s ruling, but on 30 October 2007 the President replied that the ruling adopted by him was “final and unappealable”.
The first applicant then made a further attempt to appeal against the Supreme Court President’s ruling. He argued that the President had acted outside the law and in breach of the rules of the Code of Civil Procedure, the Lithuanian Law on Implementation of EC Regulation No. 2201/2003, the Hague Convention, and EC Regulation No. 2201/2003 itself. By a ruling of 29 November 2007 the Supreme Court’s Chamber dismissed the appeal, noting that it did not have competence to review a ruling by the President.
28. In a ruling of 7 January 2008 the Lithuanian Supreme Court held that both the Klaipėda Regional Court and the Court of Appeal had erred in applying civil procedure rules concerning reopening of proceedings (see paragraph 21 above). The Supreme Court remitted to the Klaipėda Regional Court the case concerning the reopening of the civil proceedings concerning the girl’s return.
29. On 21 March 2008 the Klaipėda Regional Court rejected the request for reopening of proceedings as unfounded and the Court of Appeal did likewise on 30 April 2008.
3. Public interest in the case in Lithuania
30. By April 2008 35,000 Lithuanian citizens had signed a petition called “For Luisa” demanding that the girl not be returned to her father in Germany. The petition referred both to Lithuanian legislation and to the United Nations Convention on the Rights of the Child and argued that the girl’s best interests were to stay with her mother in a familiar environment in Lithuania. The petition was addressed to the Lithuanian President, the Prime Minister, the Chairman of Parliament, the Ombudsman for Children’s Rights and Germany’s ambassador to Lithuania.
31. In that context, I.R. declared to the press that in Lithuania “mother and child are sacred and inseparable. It is unfortunate that this rule is not followed by the courts” (mūsų šalyje mama ir vaikas yra šventa, nedaloma. Gaila, kad šia nuostata nesivadovauja teismai).
32. On 3 June 2008 the Minister of Justice met I.R. According to a Ministry of Justice press release, that week “the Lithuanian Government approved Lithuania’s position with regard to examination of the case under the urgent preliminary ruling procedure at the European Court of Justice”. The Minister of Justice also stated that it was important to support the doubt raised by the Supreme Court of Lithuania as to whether Germany in fact had jurisdiction in such a child return case. It was therefore indispensable to clearly establish the intention behind the European Union’s legal norms.
4. Procedures instituted in Lithuania for granting Lithuanian citizenship to the second applicant
33. On 24 July 2007 I.R. asked the Klaipėda city police passport unit to recognise her daughter as a Lithuanian citizen. On 11 August 2008 the second applicant was recognised (pripažinta) as a Lithuanian citizen. The authorities cited Article 9 § 1 and Article 22 of the Law on Citizenship, as in force at that time.
34. On 17 November 2007 the first applicant appealed, arguing that the Lithuanian passport had been issued in breach of law.
35. By a decision of 6 January 2008 the Migration Department rejected the first applicant’s request to cancel his daughter’s Lithuanian citizenship. It noted that the Government Commission for Questions of Citizenship had examined the girl’s situation and on 11 December 2007 had recommended that she be recognised as Lithuanian citizen, on the basis of Article 9 § 1 of the Law on Citizenship. Citizenship had been granted on the basis of a request by I.R., who was her daughter’s lawful legal representative. The Migration Department also stated that an appeal against its decision could be lodged before the Commission for Administrative Disputes or an administrative court.
5. Divorce in Germany, the German courts’ decisions over custody and the referral to the ECJ
36. In the meantime, by a judgment of 20 June 2007 the Oranienburg District Court granted a divorce to the first applicant and his spouse. It awarded permanent custody of their daughter to her father. The German court examined the Klaipėda Regional Court’s decision of 22 December 2006 refusing the return of the child (see paragraph 12 above, the “non‑return decision”), but ordered I.R. to return the child to Germany and to leave her in the custody of her father. I.R. was not present at the hearing of that court, but was represented and made submissions. On the same day, the Oranienburg District Court annexed to its decision a certificate issued pursuant to Article 42 of EC Regulation No. 2201/2003.
On 20 February 2008, the Brandenburg Regional Court dismissed an appeal lodged by I.R. and held that she was bound to return the child to Germany. I.R. was present at the hearing and made submissions.
37. Meanwhile, I.R. asked the Lithuanian Court of Appeal not to recognise the Oranienburg District Court’s decision of 20 June 2007 regarding the child’s custody and return. The Court of Appeal refused that request on 14 September 2007.
38. In response to an appeal by I.R., on 30 April 2008 the Lithuanian Supreme Court decided to suspend civil proceedings and to put to the European Court of Justice (hereinafter – ‘the ECJ’) six questions regarding the interpretation of Regulation (EC) No 2201/2003. In particular, the Supreme Court wished to know whether the Oranienburg District Court was entitled to certify the enforceability of the decision ordering the child’s return after the reversal of the Klaipėda Regional Court’s non-return decision (see paragraph 36 above).
Pending the ECJ’s examination of the questions referred to it, the Lithuanian Supreme Court also suspended execution of the Court of Appeal decision of 15 March 2007 requiring the return of the girl to Germany.
39. In May 2008 the Supreme Court also requested that the referral to the ECJ for a preliminary ruling be dealt with under the urgent procedure provided for in Article 104b of the ECJ Rules of Procedure. To substantiate such a request the Supreme Court referred to the necessity to act urgently on the grounds that any delay would have a very unfavourable impact on the relationship between the child and the parent with whom she was not living.
40. In connection with the Rinau case, on 30 June 2008 the Lithuanian Government received an inquiry from the European Commission asking why the procedures laid down by Community law were not being implemented and indicating that if the answer provided by Lithuania did not satisfy the European Commission, it might institute proceedings against Lithuania in the European Court of Justice.
6. The response from the European Court of Justice
(a) The View of the Advocate General Sharpston
41. On 1 July 2008 the Advocate General (AG) observed in her View that since one factor characteristic of the situations under consideration consisted in the fact that the abductor claimed that his action had been rendered lawful by the competent authorities of the State of refuge [in this case – Lithuania], one effective way of deterring him would be to deprive his actions of any practical or juridical consequences. In order to bring this about, the Hague Convention placed at the head of its objectives the restoration of the status quo, by means of “the prompt return of children wrongfully removed to or retained in any Contracting State” (paragraph 15 of the View). A principle which underpinned Regulation (EC) No 2201/2003 as a whole was that of cooperation and mutual confidence between the courts and authorities of the Member States, which implied that decisions of the courts of the Member State of the child’s habitual residence should in principle be recognised and enforced automatically (paragraph 18 of the View). The Advocate General also noted that the fundamental significance of this principle was brought into focus at the hearing when counsel for I.R. suggested that the Lithuanian courts might consider that the objectivity of the German courts was not guaranteed in a dispute between a German father and a Lithuanian mother. For the Advocate General, “it was clear that to allow recognition to be refused on the basis of such doubts (whether they were or were not in fact felt by the Lithuanian courts) would negate the whole system which the Regulation seeks to establish”. It would also be wholly incompatible with the aim of establishing an area of freedom, security and justice to which all the Member States had committed themselves in the Treaties (paragraph 19 of the View).
42. Whilst reiterating that the superior interests of the child must be paramount in all circumstances, the Advocate General observed the following (emphasis added):
“22. However, I should like to qualify that statement in the context of the child’s return to the Member State of habitual residence. It is clear that the Convention and the Regulation are based on the principle that, in the event of a child’s wrongful removal or retention, his or her superior interests do indeed always require that return, except only in certain clearly-defined situations set out in Articles 13 and 20 of the Convention (read, in so far as Article 13(b) is concerned, in conjunction with Article 11(4) of the Regulation). That, it seems to me, is perfectly coherent, and even necessary. A child can have no interest in being dragged from one Member State to another by a parent in quest of the court which he or she supposes will be the most sympathetic to his or her cause. I would add that a return to the Member State of habitual residence does not necessarily imply the child’s return to the home of the parent left behind, or separation from the abducting parent. Those are separate questions, to be decided by the competent court, which must take account of all the emotional, psychological and material aspects of the situation and which must, in deciding, accord paramount importance to the child’s superior interests.”
43. As to the applicant’s case, the Advocate General considered that “one cannot but observe that, in the present case, the fundamental aim of depriving the actions of the abducting parent of any practical or juridical consequences by ensuring the child’s prompt return is far from having been achieved” (paragraph 24 of the View). It was neither denied nor deniable that the German courts had jurisdiction to hear the divorce proceedings under Article 3(1)(a) of the Regulation, as all the residence requirements listed there had been fulfilled at the time when the proceedings were initiated. Next, it appeared to be common ground that the child had indeed been wrongfully retained for the purposes of the Hague Convention (Article 3) and the Regulation (EC) No 2201/2003 (Article 2(11)). At the time when the mother had announced her intention not to return to Germany with the child, custody rights had actually been exercised by both parents jointly, by virtue of German law, and the father had consented only to a two-week trip to Lithuania (paragraphs 27 and 28 of the View). In the Advocate General’s view, once seized, the Lithuanian court had in principle been required to order the child’s return. It should also have issued its judgment no later than six weeks after the application was lodged. The only grounds on which it could have refused to order the child’s return were those set out in Article 13 of the Hague Convention (paragraph 33 of the View). The Advocate General thus stated (emphasis added):
“39. However, as a result of the mother’s application for the proceedings to be reopened and the procedural vagaries that have followed upon it, the decision was not enforced, nor has it been enforced to this day. On the contrary, enforcement of the Court of Appeal’s decision has been suspended on several occasions, even by the Supreme Court itself – despite the fact that the same Supreme Court held, in its judgment allowing the reopening, that such suspension was not possible.
40. Even if enforcement of a judgment of a court of a Member State within its own territory is a matter for domestic law, it can only be concluded, at this point, that the outcome of these successive suspensions – the fact that, nearly two years after she was first supposed to return and more than 15 months after the decision ordering her return was issued, the child has still not been brought back to Germany – is totally incompatible with the fundamental aims of the Convention and the Regulation.”
(b) The preliminary ruling
44. On 11 July 2008 the European Court of Justice delivered its preliminary ruling. It held, inter alia, that procedural steps which, after a non-return decision had been given, occurred or recurred in the Member State of enforcement were not decisive and could be regarded as irrelevant for the purposes of implementing the Community regulation in question. In other words, the reversal by the Court of Appeal of Lithuania of the initial refusal of the Klaipėda Regional Court did not prevent the Oranienburg District Court from issuing the certificate (see paragraph 36 above). If the position were otherwise, there would be a risk that the Regulation would be deprived of its useful effect, since the objective of the immediate return of the child would remain subject to the condition that the redress procedures allowed under the domestic law of the Member State in which the child was being wrongfully retained had been exhausted. That risk should be particularly balanced because, as far as concerns young children, biological time cannot be measured according to general criteria, given the intellectual and psychological structure of such children and the speed with which that structure develops. Since no doubt had been expressed as regards the authenticity of the certificate issued by the German court and since it had been drawn up in accordance with the provisions of the Regulation, opposition to the recognition of the decision ordering return was not permitted and it was for the Lithuanian court merely to declare the enforceability of the certified decision and to allow the immediate return of the child.
45. The European Court of Justice also held:
“87. First, the sequence of the decisions taken by the Lithuanian courts, as regards both the application for return and that for non‑recognition of the decision certified pursuant to Article 42 of the Regulation, does not appear to have observed the autonomy of the procedure provided for in that provision. Second, the number of decisions and their diverse nature (to set aside, overturn, reopen, suspend) are evidence that, even if the most expeditious domestic procedures may have been adopted, the periods of time elapsed were already, on the date on which the certificate was issued, in manifest contradiction to the requirements of the Regulation.”
7. The Lithuanian Supreme Court’s response
46. By a ruling of 25 August 2008, the Supreme Court upheld the decision of the Court of Appeal of 14 September 2007 refusing I.R.’s request for the German court decision on the second applicant’s custody and return not to be recognised (see paragraph 37 above). The Supreme Court examined the Oranienburg District Court’s decision of 20 June 2007 and concluded that it had taken into account the Klaipėda District Court’s decision of 22 December 2006, which was the German court’s duty under Article 11 § 8 and Article 42 § 2 (c) of EC Regulation No. 2201/2003.
8. Criminal proceedings against the first applicant on charges of child abduction and wilful conduct
47. On 20 October 2008 the first applicant, I.R. and their daughter attended a meeting at the premises of the Klaipėda childcare service. The first applicant had earlier asked a Lithuanian bailiff for the meeting so that their daughter could be transferred into his custody on the basis of the writ of execution (vykdomasis raštas) issued by the Klaipėda Regional Court on 13 June 2007 (see paragraph 16 above). During the meeting ‒ before the bailiff reached the premises and whilst I.R. was in another room talking to a psychologist ‒ the first applicant took their daughter out of the building and drove her away (išsivežė).
48. The applicants travelled together to Riga, where they attempted to board a plane to Berlin. According to the Latvian authorities, on the night of 20 October 2008 the two applicants were arrested at Riga airport by the Latvian authorities.
49. The following day the two applicants were released by the Latvian authorities, who had established that the first applicant had sole custody rights over the child, as confirmed by the court decision. On the same day, I.R. arrived at Riga airport, accompanied by Lithuanian police officers. However, they had to return to Lithuania without the child because the two applicants had boarded a plane to Berlin earlier that day. The Lithuanian press quoted the first applicant as blaming the Lithuanian authorities for their failure to act, and said that he would have had to wait ten years to be reunited with his daughter if he had not acted as he did, taking her away with him. The press also quoted the Lithuanian Ombudsperson for Children’s Rights as suggesting that the first applicant’s actions in taking the daughter away with him raised doubts as to whether he could “be good for the child” (gali būti geras vaikui) and “properly guarantee the child’s safety” (tinkamai užtikrinti vaiko saugumą).
50. On 21 October 2008 a Lithuanian prosecutor opened criminal proceedings against the first applicant on charges of child abduction and wilful conduct (Article 156 § 2 and Article 294 § 1 of the Criminal Code).
51. That same day, in response to a request from a prosecutor, the Klaipėda City District Court ordered the first applicant’s detention, holding that he could have violated the rights and interests of I. R. The Lithuanian prosecutors subsequently issued a European Arrest Warrant in respect of the first applicant. They annulled that warrant on 20 November 2008.
52. On 18 November 2008 the Klaipėda Regional Court quashed the order for the detention of the first applicant. The court noted that the German courts’ decisions of 14 August 2006 and 20 June 2007 had never been invalidated, and should therefore have been executed. The fact that the second applicant should have been transferred into the first applicant’s custody followed both from the ECJ’s preliminary ruling and from the Supreme Court’s ruling of 25 August 2008. There was no basis on which to hold that the first applicant’s actions had breached the rights of I.R., who had in any case been deprived of her custody rights in respect of her daughter by court decisions that were still valid.
53. The Lithuanian prosecutors continued to pursue the criminal investigation against the first applicant; he was questioned. Criminal proceedings against the first applicant were eventually discontinued in November 2009.
B. Relevant Lithuanian law and practice
54. The Lithuanian Criminal Code provides that a father, mother or a close relative who abducts their own or a relative’s young child from a children’s establishment or from a person with whom the child lawfully resides is punishable by community service or by a fine or by restriction of liberty or by arrest or by imprisonment for a term of up to two years (Article 156 § 2). A person who, by disregarding the procedure established by law, wilfully exercises an existing or alleged right of his own or of another person which is disputed or recognised but not yet exercised, and causes major damage to that person’s rights or legitimate interests is punishable by a fine or by arrest or by imprisonment for a term of up to three years (Article 294 § 1).
55. The Law on the Implementation of EC Regulation No. 2201/2003 was passed by the Seimas on 21 April 2005 (Įstatymas dėl 2003 m. lapkričio 27 d. Tarybos reglamento (EB) Nr. 2201/2003 dėl jurisdikcijos ir teismo sprendimų, susijusių su santuoka ir tėvų pareigomis, pripažinimo bei vykdymo, panaikinančio reglamentą (EB) Nr. 1347/2000, įgyvendinimo). A request for a child’s return had to be examined within (laikantis) the time‑limits set out in Article 11 of the EC Regulation (Article 2 § 5 of the aforementioned Law). When examining such a request, a regional court was to act as the court of first instance (Article 2 § 2). An appeal could then be lodged with the Court of Appeal, whose decision whether or not to return the child was final. The Law explicitly stated that “in cases concerning a child’s return, an appeal on points of law is not possible” (Article 2 § 6).
That Law was replaced by a new Law on the Implementation of the European Union and International Law Acts within the Civil Proceedings in Lithuania (Lietuvos Respublikos civilinį procesą reglamentuojančių Europos Sąjungos ir tarptautinės teisės aktų įgyvendinimo įstatymas), passed by the Seimas on 13 November 2008. Article 7 §§ 5 and 6 of the new Law remained identical to the legal provisions of Article 2 §§ 2, 5 and 6 of the earlier Law.
C. Relevant international law
56. For relevant international law and practice as regards the rights of the child and child abduction cases, including the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, see X v. Latvia [GC] (no. 27853/09, §§ 34-40, ECHR 2013).
57. The relevant parts of 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 reproduced in K.J. v. Poland (no. 30813/14, § 39, 1 March 2016).
COMPLAINTS
58. The first applicant alleges a violation of Article 8 of the Convention, both in his own name and on behalf of the second applicant.
59. He submits that despite the German court’s decision to grant him custody of his daughter on 14 August 2006, he was unable to have any contact with her from 21 July 2006 to 20 October 2008, that is, for more than two years. The suspension of execution of the Lithuanian court decision of 15 March 2007 ordering the second applicant’s return completely deprived the first applicant of his custody rights.
60. The first applicant also submits that the Lithuanian courts failed to properly apply Council Regulation No. 2201/2003 by unjustifiably prolonging the time-limit laid down therein, by failing to provide him with an interpreter during Lithuanian court proceedings, by hearing only witnesses for I.R., and by omitting to transfer the relevant documentation to the German authorities, as required by the Hague Convention.
61. The first applicant also argues that the Lithuanian courts had no competence to obstruct his daughter’s return and yet the six-week time-limit under the Hague Convention was exceeded twenty times. This was an interminable period of time, not only to a child aged between eighteen months and three years and nine months, but also to a parent. The European Court of Justice therefore correctly found that such a length of proceedings far exceeded the time-limits established by law, and that in reality there was no legal issue to decide other than the dilatory procedures introduced by I.R. Nonetheless, the Lithuanian authorities had condoned this illegal situation. The two applicants’ contact over a period of two years was nearly non‑existent except for a few, rare moments when they were able to meet. It was only because of the close relationship the two applicants enjoyed initially, before the second applicant’s kidnapping, that a total disruption of their relationship was avoided. However, one should not underestimate the consequences of such a long separation, which had led to a weakening of the bond between father and daughter, as well as having a psychological impact on the child.
62. The first applicant also alleges a violation of Article 6 § 1 of the Convention. He submits that political pressure was put on the Lithuanian courts during the civil proceedings concerning his daughter’s return to Germany. Members of the Lithuanian Seimas, the Government, the childcare authorities, the President of the Supreme Court and other State authorities intervened, providing support exclusively to I.R. and using the case for political ends. The intervention of these bodies in the court proceedings was in clear breach of the principle of the separation of powers. Moreover, the first applicant was charged with kidnapping his own daughter, notwithstanding his custody rights. He was pursued by the Lithuanian police as far as Riga, even though they had no territorial jurisdiction to pursue him in Latvia.
63. In the context of this case, a new version of the Law on Citizenship and new laws for executing foreign courts’ rulings were passed, favouring the situation of I.R. and her child to the applicant’s detriment. The second applicant was also granted Lithuanian citizenship without the first applicant’s agreement.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the two applicants’ right to respect for their family life, contrary to Article 8 of the Convention (see, most recently, K.J. v. Poland, no. 30813/14, §§ 49, 67 and 72, 1 March 2016)?
2. In particular, were the proceedings in Lithuania for the enforcement of the German courts’ decisions compatible with the procedural requirements of Article 8 of the Convention?
3. Was Article 6 of the Convention complied with in view of the applicants’ argument that their case was politicised in Lithuania?
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