Otvorený list na ODVOLANIE JUDr.A.Cisárovej riaditeľky CIPS

THIRD SECTION
Application no. 10280/12
José Juan LOPEZ GUIO against Slovakia
lodged on 13 February 2012
STATEMENT OF FACTS
THE FACTS
1. The applicant, Mr José Juan Lopez Guio, is a Spanish national who was born in 1967 and lives in Madrid. He was represented before the Court by Mr J. I. Moreno Macho, a lawyer practising in Madrid.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Hague Convention proceedings
2. On 21 October 2010 the applicant lodged an application with the Bratislava I District Court (Okresný súd) under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
3. The application was directed against a Slovak national (“the mother”), to whom the applicant was not married.
4. In his application, the applicant argued that the mother had wrongfully removed or retained their child, a Slovak national born in 2009, and sought the child’s return to Spain as to the country of the child’s habitual residence.
5. At that time, the child was provisionally entrusted to the care of the mother under the decision (14 September 2010) of the Martin District Court, in the judicial district of which the mother and the child were staying in Slovakia. The decision was appealed and there is no information available as to the current state or outcome (if any).
6. The child’s interests in the proceedings under the Hague Convention were represented by a court‑appointed representative, presumably the Martin Social Services.
7. The District Court heard the application on 11 and 18 November 2010. The child’s court-appointed representative failed to appear at either of the hearings despite having duly been summoned. The mother and her lawyer appeared at the latter hearing, having excused them from the former.
8. Following the hearing of 18 November 2010, on the same day, the District Court ordered the child’s return to Spain. The order has the procedural form of a decision (uznesenie).
9. The order for the child’s return was upheld by the Bratislava Regional Court (Krajský súd) and became final, binding and enforceable on 4 February 2011, following the mother’s unsuccessful appeal.
2. Enforcement
10. By way of a letter of 12 February 2011 the applicant invited the mother to abide by the return order, to no avail.
11. On 2 February 2011 the applicant applied to the Martin District Court for a warrant for enforcement of the return order.
12. On 16 March, 28 April and 13 May 2011, respectively, the District Court called upon the mother and interviewed her and the applicant with a view to having the return order complied with, to no avail.
13. On 16 May 2011 the District Court issued the enforcement warrant and authorised the applicant to carry it out.
14. The mother appealed to the Žilina Regional Court, which – on 7 September 2011 – decided to stay the proceedings on the ground that, meanwhile, the mother had petitioned for reopening of the return proceedings (see below) and that, if the petition was granted, the enforcement proceedings would be stayed by operation of law.
15. It appears that the enforcement proceedings have been stayed since.
3. Extraordinary remedies
16. The mother challenged the return order by way of (i) an appeal on points of law, (ii) a petition to the Prosecutor General inviting him to lodge an extraordinary appeal on points of law, and (iii) a petition for reopening.
17. It appears that the core of the argument was that the mother and the child had not been granted adequate time and facilities to prepare for the hearings and thus properly to assert their rights and interests.
18. On 22 March 2011 the Supreme Court (Najvyšší súd) declared the appeal on points of law inadmissible. It found that the Bratislava I District Court had erred in carrying out the hearing of 11 November 2010 in the absence of the mother and her lawyer but that that error had been rectified by hearing the case on 18 November 2010. As to the child, whose court‑appointed representative had duly been summoned to both hearings, the representative had failed to show up without any excuse.
19. The Prosecutor General decided not to use his discretionary power to lodge an extraordinary appeal on points of law in the present case.
20. The mother’s petition for reopening was dismissed on 26 June and 25 October 2011 by, respectively, the Bratislava I District Court and, following the mother’s unsuccessful appeal, the Bratislava Regional Court on the ground that the proceedings under the Hague Convention had been concluded in the procedural form of a decision (uznesenie) (see paragraph 7 above), in which case no reopening was permissible by law.
4. Constitutional complaint
21. On 1 July 2011, acting in her own name as well as in that of the child, the mother challenged the decision of 22 March 2011 (see paragraph 18 above) by way of a complaint under Article 127 of the Constitution.
22. The complaint was directed against the Supreme Court and the applicant has neither been a party to the ensuing proceedings and nor has he been informed of them.
23. On 18 October 2011 the Constitutional Court (Ústavný súd) declared the complaint admissible.
24. On 13 December 2011 the Constitutional Court dismissed the complaint on the merits in so far as it had been brought by the mother.
However, at the same time, the Constitutional Court found that the Supreme Court had violated the child’s rights as specified below.
25. In particular, a violation of the child’s rights was found under Articles 46 § 1 (judicial protection), 47 § 3 (procedural equality) and 48 § 2 (hearing in one’s presence and opportunity to comment on evidence) of the Constitution; Article 6 § 1 (fairness) of the Convention; and Articles 3 §§ 1 (consideration of the best interests of the child) and 2 (protection and care necessary for the child’s well-being) and 12 §§ 1 and 2 (forming the child’s views and being heard in judicial proceedings) of the Convention on the Rights of the Child.
26. The Constitutional Court endorsed the Supreme Court’s view that the District Court’s error in respect of the mother had been rectified at the hearing of 18 November 2010 (see paragraph 18 above).
27. In so far as the child was concerned, its views were to be expressed by the court-appointed representative, whose failure to appear was not a valid reason for ruling on the matter without having the child’s views established. There were tools, including procedural fines, for ensuring proper participation of the court-appointed representative in the proceedings.
28. Consequently, the Constitutional Court quashed the challenged decision and remitted the mother’s appeal on points of law to the Supreme Court for re-examination. It appears to have been pending since.
5. Other elements of context
29. Meanwhile, on 28 February and 30 June 2011, respectively, the Martin District Court and, following the mother’s unsuccessful appeal, the Žilina Regional Court discontinued the proceedings on a petition by the mother for regulation of the exercise of parental rights in respect of the child finding that Slovakian courts had no jurisdiction in the matter.
B. Relevant international and European Union law
30. The relevant legal provisions 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.).
31. 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
32. Relying on Articles 6 and 8 of the Convention, the applicant complains that that the Slovakian authorities have failed to ensure a prompt return of the child; that the proceedings for its return have not been expeditious; that those proceedings have been interfered with by an arbitrary judgment of the Constitutional Court, to the proceedings before which he was not a party and had no impact on their outcome despite having a direct interest in it; that he is not being provided with a translation of judgments and decisions into a language he understands; and that – as a result - he has been deprived of contact with his child for a protracted period of time.
33. The applicant also alleges a violation of Articles 1, 7, 11 and 12 of the Hague Convention.
QUESTIONS
1. With reference to any and all proceedings, which involved the determination of the applicant’s civil rights and obligations in respect of or in connection with his claim for the return of the child, did the applicant have a fair hearing, in accordance with Article 6 § 1 of the Convention?
In particular, in view of the fact that the applicant could not take part in the proceedings before the Constitutional Court, and of the effect of the outcome of those proceedings on the applicant’s civil right and obligations, including but not limited to those stemming from the then final, binding and enforceable order for the return of the child, was the applicant’s right of access to a court respected?
Have all these proceedings been compatible with the requirements of Article 6 § 1 of the Convention in view of their language (including the language of the decisions, as communicated to the applicant)?
2. Was the overall length of all the proceedings, which involved the determination of the applicant’s civil rights and obligations in respect of or in connection with his claim for the return of the child, in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
3. 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, length, current state and final outcome (if any) of the proceedings for the return of the child, including the enforcement phase, and especially the impact of the Constitutional Court’s judgment of 13 December 2011, 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 applicant’s practical and effective enjoyment of his right to respect for his family life, interpreted in the light of the Hague Convention?
The Government are invited to provide the Court with all relevant information and documentation relating to the social, family, administrative and legal background to this case.