CASE OF FRISANCHO PEREA v. SLOVAKIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1963 and lives in Maryland (the United States of America). 6. In 1999 the applicant married A., a Slovak national. There were three children of the marriage: B., born in 1999, C., born in 2002, and D., born in 2004. The children are all Slovak nationals, while B. is also a Peruvian national, and C. and D. also have the United States nationality. 7. For about eight years, until July 2010, the family lived together in one household in Maryland. A. then moved to stay with friends, took the children with her, the couple agreed on alternating custody, and they started receiving marriage counselling. Nevertheless, A. filed for divorce, but then withdrew her petition. 8. On 25 August 2010 A. left the United States for Slovakia, taking the children with her. The following day she informed the applicant that they had left and that she had no intention of coming back. 9. In September 2010 A. filed for divorce in Slovakia and requested that the children be entrusted to her custody by way of an interim measure. The status and outcome (if any) of these proceedings is not known. 10. On 14 October 2010 the applicant filed an application for the return of the children to the United States as the country of their habitual residence, relying on the (Slovakian) International Private and Procedural Law Act (Law no. 97/1963 Coll., as amended), 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, and the Hague Convention. 11. On 25 November 2010 the applicant’s Hague Convention application was transmitted to the Bratislava I District Court, through the intermediary of the Slovak Central Authority responsible for implementing the Hague Convention. 12. On 21 January 2011 the District Court ordered the children’s return to the United States, having found that it was the country of their habitual residence, that they had been removed from there wrongfully, and that no obstacles to the return had been established. 13. On 28 April 2011 the Bratislava Regional Court dismissed an appeal filed by A. and upheld the return order. The matter thus became resolved by force of a final and binding decision on 9 May 2011. 14. On 31 May 2011 the applicant filed for judicial enforcement of the return order. 15. Upon several unsuccessful attempts at having A. comply with the order voluntarily, the Komárno District Court acceded to the petition on 28 November 2011 by issuing a warrant for the order’s enforcement. 16. On 29 June 2012 the Nitra Regional Court quashed the enforcement warrant following an appeal by A. It observed that, meanwhile, A. had challenged the decision of 28 April 2011 by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) to the Constitutional Court; that on 15 December 2011 the Constitutional Court had declared that complaint admissible; and that, at the same time, it had suspended the enforceability of the return order pending the outcome of the proceedings on the merits of the complaint of A. (see paragraphs 20 and 21 below). The Regional Court concluded that, in those circumstances, an essential prerequisite for the enforcement of the return order had lapsed. Consequently, the matter was remitted to the District Court for a new decision to be taken in the light of the outcome of the constitutional complaint of A. 17. The applicant challenged the decision of 29 June 2012 by way of an appeal on points of law. He pointed out that there had been no hearing before the Regional Court and that it was only from the Regional Court’s decision that he had learned of the Constitutional Court’s decisions underlying it and of other new relevant facts, such as that the applicant had applied for the enforcement proceedings to be stayed. As the Constitutional Court’s decisions had not been served on him and he had had no knowledge of those facts, he had been deprived of an opportunity to comment and to consider the taking of other legal steps. This was contrary to the principles of adversary proceedings and equality of arms and, in the applicant’s submission, he had thereby been “prevented from acting before the court”, which constituted an admissibility ground for his appeal under Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “CCP”). 18. On 6 December 2012 the Supreme Court declared the appeal inadmissible. It observed that the Regional Court had of its own motion obtained a copy of the Constitutional Court’s decision to suspend the enforceability of the return order, that it had based its decision on it, and that a copy of the Constitutional Court’s decision had never been served on the applicant. However, the Supreme Court also noted that the Constitutional Court’s decision was binding upon the Regional Court and considered that, therefore, having it served on the applicant and having allowed him to comment could not have had any impact on the Regional Court’s decision. Therefore, in the Supreme Court’s conclusion, the ground invoked by the applicant for the admissibility of his appeal had not been given. 19. In consequence, it became incumbent upon the District Court to rule on the applicant’s enforcement petition anew, which it did on 18 January 2013 by dismissing it. The District Court observed that on 16 May 2012 the Constitutional Court had quashed the decision upholding the return order and that it had remitted the appeal of A. against that order to the Bratislava Regional Court for a new determination (see paragraph 23 below). The return order was thus pending on appeal and, as such, it was no longer enforceable. The District Court’s decision became final and binding on 8 February 2013. 20. On 6 July 2011 A. challenged the decision of 28 April 2011 to uphold the return order (see paragraph 13 above) by way of a complaint to the Constitutional Court. It was directed against the Regional Court and, in it, she submitted that the applicant had filed observations in reply to her appeal against the return order; that she had not been served a copy of these observations; that her appeal had been determined without a hearing; and that she had accordingly been deprived of the opportunity to comment on those observations, which was contrary to her rights under Articles 46 § 1 (right to judicial protection), 47 § 3 (equality of parties to judicial proceedings) and 48 § 2 (right to comment on the evidence assessed) of the Constitution, as well as Article 6 § 1 (fairness) of the Convention. In addition, A. requested that the Constitutional Court indicate an interim measure to the effect that the enforceability of the contested decision be suspended. 21. On 15 December 2011 the Constitutional Court declared the complaint admissible and ruled that the enforceability of the decision of 28 April 2011 should be suspended pending the outcome of the constitutional proceedings on the merits. As to the latter ruling, the Constitutional Court found (i) that the suspensive measure was not contrary to any important public interest, (ii) that not having the enforceability of the return order suspended could lead to an irreversible situation and “cause detriment to the property sphere” of A. in potential violation of her fundamental rights and freedoms, and (iii) that having the enforceability suspended “gave rise to no risk of damage to any party concerned”. 22. In the ensuing proceedings on the merits, the Bratislava Regional Court as the defendant of the complaint submitted, inter alia, that there was no statutory requirement for observations in reply to an appeal to be communicated to the appellant for further observations, unless the former observations had a substantial impact on the determination of the appeal. However, the applicant’s observations in reply to the appeal by A. had had no such impact. 23. In a judgment of 16 May 2012 the Constitutional Court found a violation of the rights of A. as identified above (see paragraph 20), quashed the decision of 28 April 2011, remitted the case to the Regional Court for a new determination of the appeal of A. against the return order, and awarded her legal costs. In principle, the Constitutional Court fully embraced the line of argument advanced by A. 24. The Constitutional Court also noted that the applicant had sought leave to intervene in the proceedings as a third party. In that respect, it observed that constitutional proceedings were conducted in the procedural framework laid down in the Constitutional Court Act (Law no. 38/1993 Coll., as amended), as a lex specialis, and in the CCP, as a lex generalis. The Constitutional Court Act however envisaged no standing for third parties to intervene in proceedings on individual complaints, and its quality of a lex specialis excluded the application of the third-party-intervention rules under the CCP. For that reason, the Constitutional Court observed specifically that it had taken no account of the submissions made by the applicant. 25. The applicant obtained a copy of the Constitutional Court’s judgment on 16 August 2012. 26. On 28 February 2013 the applicant lodged a complaint with the Constitutional Court, alleging inter alia a violation of his rights under Article 46 § 1 of the Constitution and Article 6 § 1 of the Convention (fairness) in the enforcement proceedings, in particular in their phase before the Regional Court and the Supreme Court, and raising in substance the same arguments as in his appeal on points of law (see paragraph 17 above). The applicant pointed out, in addition, that that it had been for substantially the same reasons that the Constitutional Court itself had found a violation of the rights of A. in relation to her appeal against the return order. 27. On 5 November 2013 the Constitutional Court declared the complaint inadmissible. It fully endorsed the reasoning behind the Supreme Court’s decision of 6 December 2012 (see paragraph 18 above) and concluded that, accordingly, the complaint was manifestly ill-founded. The decision was served on the applicant on 9 December 2013. 28. Following the Constitutional Court’s judgment of 16 May 2012, on 21 September 2012, the Bratislava Regional Court decided again on the appeal by A. against the return order of 21 January 2011 by quashing that order and remitting the case to the Bratislava I District Court for a new determination. 29. In the subsequent period a number of hearings were held at first instance and courts at two levels of jurisdiction dealt with various procedural matters such as translations of documents into a language the applicant understood, court fees and costs of the translations, the applicant’s visiting rights in relation to his children pending the outcome of the proceedings on the merits, an injunction prohibiting A. to leave and remove the children form the territory of Slovakia, admission of the mother of A. to the proceedings as a third party, two procedural fines on A., her challenges to the first-instance judge for bias, her request for a legal-aid lawyer and establishing her whereabouts. There is no indication that any of the fines and interim rulings were actually enforced. 30. No decision on the merits was taken and the District Court decided to terminate the proceedings on 28 November 2014. It referred to Article 12 (last sentence) of the Hague Convention, which permits termination of the proceedings if there is an indication that the child in question has been taken to another State, and observed that A. and the children had moved to Hungary and had established residence there. 31. On 7 January 2015 the applicant appealed and his appeal appears to be still pending.