CASE OF KAROUSSIOTIS v. PORTUGAL [Extracts]
Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies, same application submitted to other procedure);Violation of Art. 8
Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
7. The applicant was born in 1980 and lives in Krefeld (Germany). 8. On 25 August 2001 she gave birth to a child in Germany whose father, A., is a Portuguese national. 9. In October 2001 the child’s father was sentenced by the court of Krefeld to five years’ imprisonment for drug trafficking. His exclusion from Germany having been ordered, he was deported to Portugal in November 2004. 10. The applicant and the child’s father separated while he was in prison. 11. In January 2005, accompanied by a paternal uncle, the child went to Portugal to visit his father. 12. On 14 January 2005 the applicant travelled to Portugal to collect her child. She returned alone to Germany on 22 February 2005. 13. In March 2005 the applicant lodged, with the Federal Attorney-General, a request for the child’s return to Germany in accordance with the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”). 14. On 27 October 2005 the German public prosecution service sent a request to the Portuguese authorities to obtain the child’s return, alleging that the child had been wrongfully removed from Portugal in breach of Article 3 of the Hague Convention. 15. The request was served on the child’s father, who opposed the return. A. denied, in particular, that the child’s removal had been wrongful and stated that the decision for the child’s trip had been taken by both parents. He explained that the child’s movement had been decided by both parents because the child’s mother had envisaged settling in Portugal. 16. On 24 January 2006 the Braga Family Court gave a judgment to the effect that the child should not be returned to Germany, finding that the child’s retention in Portugal was not wrongful within the meaning of Article 3 of the Hague Convention or of Article 11 of Council Regulation (EC) no. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“Council Regulation no. 2201/2003”). 17. On 2 February 2006 the applicant appealed against the judgment before the Guimarães Court of Appeal arguing, among other things, that she had not been heard by the Braga Family Court. 18. In a judgment of 21 June 2006, the Guimarães Court of Appeal granted the applicant’s request. Annulling the judgment of the Braga Family Court, the Court of Appeal referred the case back to it, directing in particular that it should hear the child’s mother. 19. The child’s father appealed against the judgment of the Guimarães Court of Appeal before the Supreme Court, which dismissed his appeal on 7 November 2006. 20. On 15 August 2007, pursuant to an international letter of request from the Braga Family Court dated 14 February 2007, the mother was heard by the Krefeld court. 21. On 13 September 2007 the Krefeld court reported back to the Braga Family Court, sending the record of the hearing. 22. In a judgment of 21 May 2008, the Braga Family Court again rejected the request for the child’s return, finding that the child’s removal had not been wrongful as it had been agreed between the two parents. 23. On 12 June 2008 the applicant lodged an appeal before the Guimarães Court of Appeal. Her appeal was dismissed by a judgment of 9 January 2009. 24. In its judgment, the Court of Appeal stated: “... it must be concluded that from the time when the mother of L. returned to Germany without her son, he began to be wrongfully retained in Portugal. Her return request showed, categorically, that she did not wish her son to remain in Portugal.” 25. Even though the Court of Appeal recognised that the case concerned a situation of wrongful retention of a child, under the terms of Council Regulation no. 2201/2003, it found it preferable for the child to remain in Portugal for the following reasons: “The facts of the case show that the child, who has been looked after by his great-grandmother since March 2008, has a particular emotional attachment to her, seeing in her a mother figure, to the point of almost forgetting the image of his mother. His great-grandmother is the person who takes care of him day-to-day, with tenderness ... The mother very rarely calls her child, and when she does so, the child does not consider it very important. The child sees his great-grandmother, at the current stage of his development, as a figure of authority who brings him security and tranquillity, as shown in his behaviour at school and in his relationships with others. He is content in the environment in which he lives and has been very successful at school. Accordingly, to change his environment and take him away from the person to whom he relates would risk causing him psychological harm ... All the conditions are thus met for the respondent State to prevent the child’s return, in the light of the child’s best interests, which must take precedence over the free movement of children – even if this is done safely – in accordance with Article 13 (b) of the Hague Convention [on the Civil Aspects of International Child Abduction] of 1980. Taking the view that a return to Germany would be harmful for the child, the respondent State has acted in accordance with Article 13 of the Hague Convention.” 26. On 2 March 2005 the public prosecutor at the Braga court opened proceedings in respect of parental responsibilities (regulação do poder paternal) vis-à-vis the child. Custody was provisionally awarded to the father. 27. On 3 October 2005 the Braga Family Court held its first conciliation hearing. As they failed to reach an agreement, the parents were requested to submit pleadings. 28. On 19 October 2005 the applicant filed her pleadings. Submitting that the child’s retention in Portugal was wrongful, the applicant argued that the Braga Family Court lacked territorial jurisdiction, as in her view the German courts had jurisdiction in accordance with Council Regulation no. 2201/2003. 29. The child’s father, in his pleadings of 21 October 2005, requested the court to award him custody. 30. On 27 October 2005 the public prosecutor at the Braga Family Court submitted that the decision should be deferred until the completion of the proceedings before the German courts concerning the child’s return. 31. In a decision of 31 July 2006, the Braga Family Court amended the provisional allocation of parental authority in respect of the child, transferring it to the child’s great-grandmother. 32. On 4 January 2008 the applicant (represented by her lawyer) and the child’s father jointly requested the Braga Family Court to award custody of the child to the applicant. 33. On 30 January 2008 the applicant requested the court to speed up the proceedings. 34. On 27 February 2008 the child’s father was remanded in custody in connection with an investigation into false imprisonment, extortion, drug trafficking, unlawful carrying of a weapon and theft. 35. On 10 March 2008 the applicant reiterated her request to the Braga Family Court to obtain parental authority of the child. In a decision of 4 April 2008, the court dismissed the applicant’s request, indicating that the proceedings had been stayed. 36. On 15 May 2008 the child’s great-grandmother requested the court to grant her permanent custody of the child. 37. Following the judgment of the Guimarães Court of Appeal of 9 January 2009, the Braga Family Court decided on 3 May 2009 that the proceedings in respect of parental responsibilities should be resumed. 38. On 26 January and 15 May 2009 the applicant requested the Braga Family Court to award her custody of the child, invoking her agreement with the child’s father. 39. By an international letter of request, the court sought information from the German social services about the applicant’s social and financial circumstances. 40. On 12 October 2009 the Braga Family Court received the reports that had been requested from the German authorities. On 20 October 2009 it received a report from the Portuguese social services showing the child’s general situation of well-being in Portugal. 41. To date, the proceedings are still pending before the Braga Family Court. 42. On 2 April 2008 the applicant filed a complaint with the European Commission alleging an infringement of Council Regulation no. 2201/2003. She complained about the excessive length of the proceedings before the Braga Family Court, relying on Article 11 of the Regulation. 43. On 15 September 2008 the applicant sent various documents in support of her application to the European Commission. 44. On 7 May 2009 the Commission’s Directorate-General for Justice, Freedom and Security asked the applicant for additional information concerning the proceedings for the return of the child on grounds of wrongful removal and retention. On 15 June 2009 the applicant sent that information to the Directorate-General, submitting a copy of the Guimarães Court of Appeal’s judgment of 9 January 2009. 45. According to the most recent information from the applicant, dating from 2 July 2010, the proceedings thus initiated before the European Commission were still pending. ... ... 48. The relevant part of Article 17 of the Treaty on European Union provides as follows: “1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.” 49. Article 258 of the Treaty on the Functioning of the European Union (formerly Article 226 of the Treaty establishing the European Community) provides as follows: “If the Commission considers that a member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.” 50. In addition, the relevant part of Article 260 of the Treaty on the Functioning of the European Union (formerly Article 228 of the Treaty establishing the European Community) provides as follows: “3. ... If the Court [of Justice of the European Union] finds that there is an infringement it may impose a lump sum or penalty payment on the member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment.” 51. The explanatory note accompanying the complaint form to be addressed to the European Commission for non-compliance with European Union law explains as follows: “Anyone may lodge a complaint with the Commission against a member State about any measure (law, regulation or administrative action) or practice which they consider incompatible with a provision or a principle of Community law. Complainants do not have to demonstrate a formal interest in bringing proceedings. Neither do they have to prove that they are principally and directly concerned by the infringement complained of. To be admissible, a complaint has to relate to an infringement of Community law by a member State. ...”