CASE OF HOHOLM v. SLOVAKIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 6+13 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) (Article 13 - Right to an effective remedy;Effective remedy)
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1975 and lives in Asvag (Norway). 6. In 2000 the applicant married a Slovak national (A.) in Norway. There were two children from the marriage, born in 2000 and 2002 respectively. 7. The family lived together in Norway until May 2004, when the applicant left the family home. On 18 August 2004 an administrative decision was taken in Norway on the couple’s separation. 8. On 7 September 2004 the Vesterålen District Court (tingrett) issued an interim order that, until the resolution of the matter on the merits, the children should be the joint responsibility of both parents and should remain in the care of A. The court also determined the applicant’s visiting rights and forbade both parents to remove the children from the Norwegian territory without the consent of the other parent. 9. Nevertheless, on 8 July 2005 A. left Norway for Slovakia, taking the children with her. 10. On 21 September 2005 the Vesterålen District Court ruled that the children be put under the exclusive parental responsibility and in the care of the applicant. It also determined the visiting rights of A. and issued an order that she should not remove the children from the territory of Norway. This judgment was upheld by the Hålogaland High Court (lagmannsrett) on 10 March 2006 following an appeal by A., and her request for leave to appeal on points of law was dismissed by the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) on 23 May 2006. 11. On 14 December 2005 the applicant initiated proceedings in Slovakia against A. under the Hague Convention, seeking an order for the return of the children to their country of habitual residence ‒ Norway. 12. The action was examined by the courts in four rounds, two of which were followed by enforcement proceedings. They are described below in turn. 13. The first examination resulted in the dismissal of the action by the Liptovský Mikuláš District Court (Okresný súd) on 23 May 2006 and of the applicant’s appeal (odvolanie) by the Žilina Regional Court (Krajský súd) on 28 February 2007. These decisions became final and binding (právoplatnosť). 14. The applicant subsequently petitioned the Prosecutor General (“the PG”) to exercise his discretionary power to challenge these decisions by way of an extraordinary appeal on points of law (mimoriadne dovolanie) on the applicant’s behalf. However, in a letter of 25 October 2007 he was informed that, under the applicable procedural rules, no such extraordinary appeals were available in family law matters. 15. Meanwhile, on 30 May 2007, the applicant had challenged the ordinary courts’ decisions by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). 16. Upon examining this complaint, on 12 June 2008, the Constitutional Court (Ustavný súd) found a violation of the applicant’s rights under Article 6 § 1 (fairness), but no separate issue under Article 8 of the Convention. As a result, it quashed the decision of 28 February 2007 and remitted the matter to the Regional Court for reexamination of the applicant’s appeal against the decision of 23 May 2006. 17. In consequence, on 7 October 2008 the Regional Court re-examined the appeal and decided to quash the decision of 23 May 2006 and to remit the case to the first-instance court for reexamination. 18. In the second round of examination, an order for the return of the children was issued by the District Court on 16 April 2009 and, following an appeal by A., it was upheld by the Regional Court on 23 June 2009. As the order thereby became final and binding, on 13 August 2009 the applicant petitioned for enforcement. 19. However, the return order was quashed by the Supreme Court (Najvyšší súd) on 7 September 2010, following an appeal on points of law (dovolanie) by A. The matter was consequently remitted to the District Court for a fresh examination and, on 30 September 2010, the enforcement proceedings were discontinued. 20. In the third round of examination, a new order for the return of the children was issued by the District Court on 22 October 2010 and, following an appeal by A., it was upheld by the Regional Court on 25 January 2011. The order thus became final and binding and, on 24 February 2011, the applicant petitioned for enforcement. 21. However, the return order was again quashed by the Supreme Court, on 27 July 2011, following an extraordinary appeal on points of law lodged by the PG on behalf of A. Among other things, the Supreme Court observed that the courts were duty-bound to examine as carefully as possible the overall situation to which the children would return in the place of their habitual residence. On the facts of the present case, the lower courts had based their assessment regarding the social situation of the applicant on reports drawn up by the Norwegian Central Authority responsible for implementing the Hague Convention. However, these reports dated back to February and April 2009 and, in the circumstances, they were outdated. For this reason and others, the matter was again remitted to the District Court for a fresh examination and the enforcement proceedings were terminated. 22. The fourth and final round of examination resulted in the dismissal of the applicant’s petition by the District Court on 21 November 2011. This decision was appealed against by the applicant and the public prosecution service, who had previously joined the proceedings but later withdrew their appeal. 23. On 8 February 2012 the Regional Court discontinued the proceedings in respect of the appeal by the public prosecution service and declared the applicant’s appeal inadmissible for being out of time. 24. On 20 February 2012 the Regional Court corrected its decision of 8 February 2012 in so far as the applicant’s appeal was concerned. In particular, having established an error in its previous calculation of the applicable statutory time-limit, the Regional Court ruled that the applicant’s appeal had in fact been lodged in good time and that the proceedings on it were to continue. A. then challenged this decision by means of an appeal on points of law, but her appeal was rejected by the Supreme Court on 28 June 2012 as being inadmissible. 25. The Regional Court heard the applicant’s appeal on 22 October 2012 and dismissed it on 6 November 2012. 26. In dismissing the petition and the appeal, the courts relied on the Supreme Court’s judgment of 27 July 2011 (see paragraph 21 above) and took into account the fact that the children wished to stay with A. in Slovakia, that they had spent more than half of their lives in Slovakia, and that they were integrated there. The courts concluded that it was therefore in the best interests of the children that they should not be returned to Norway. The matter was settled by force of a final and binding decision on 31 December 2012. 27. Meanwhile, on 3 September 2012 the applicant had turned to the Constitutional Court with a fresh individual complaint. Directing it against the District Court, the Regional Court, and the Supreme Court, he alleged a violation of his rights under Articles 6 (fairness and length) and 8 of the Convention and their constitutional equivalents. In particular, the applicant contended that the proceedings had been pending for nearly seven years, and that in the given situation the excessive length thereof worked against him. In addition, he argued that the District Court’s decision of 21 November 2011 violated his right to respect for his private life and, challenging in substance mainly the Supreme Court’s decision of 27 July 2011, he asserted that the proceedings had been unfair inter alia because the PG had lodged an extraordinary appeal on points of law on behalf of A., although such a remedy had been denied to the applicant on the grounds that it was not available as a matter of law (see paragraphs 14 and 21 above). 28. On 30 October 2012 the Constitutional Court declared the complaint inadmissible. At the time of the Constitutional Court’s decision, the applicant’s Hague Convention petition was still pending before the Regional Court on his appeal against the first-instance ruling of 21 November 2011 in the fourth round of examination (see paragraphs 22 et seq. above), after the second final and binding return order had been quashed by the Supreme Court on 27 July 2011 following an extraordinary appeal on points of law lodged by the PG on behalf of A. (see paragraph 21 above). As regards the length of the proceedings, the Constitutional Court observed that the Supreme Court and the District Court had determined the matter on 27 July and 21 November 2011 respectively. Therefore, at the time the constitutional complaint was introduced, these courts were no longer dealing with the case. Examination of the length of the proceedings before these courts could thus no longer aid their acceleration and, consequently, the applicant could not be deemed to have the requisite interest in having it examined. In addition, the length of the proceedings before the Regional Court being relatively short, the remainder of the length-of-proceedings complaint was manifestly ill-founded. In so far as the constitutional complaint concerned the Supreme Court’s decision of 27 July 2011, it had evidently been lodged outside the statutory two-month time-limit and, as the proceedings on the applicant’s appeal against the decision of 21 November 2011 were still pending, any complaint in relation to their outcome was premature. The decision was served on the applicant’s lawyer on 4 December 2012.