CASE OF MANSOUR v. SLOVAKIA
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
6. The applicant was born in 1972 and lives in Dublin, Ireland. 7. In 2004 he married a Slovak national and the couple settled in Ireland. Their two children, born in 2006 and 2008, are both Irish nationals. 8. On 6 January 2011 the mother travelled to Slovakia with the two children and they have not returned to Ireland since. 9. On 31 January 2011 the applicant commenced proceedings in the Slovakian courts for the return of his children to Ireland under the Brussels II bis Regulation and the Hague Convention. 10. On 1 July and 26 October 2011 respectively, the Bratislava I District Court and, following an appeal by the mother, the Bratislava Regional Court, ordered the return of the children to Ireland as their country of habitual residence and issued several ancillary orders. 11. The return order became enforceable on 8 July 2011. 12. On 6 February 2012 the applicant applied for judicial enforcement of the return order since the mother had not complied with it. 13. On 9 February 2012 the Michalovce District Court attempted to have the mother comply voluntarily with the order. In response, she informed the District Court that she had lodged a request with the Prosecutor General for him to exercise his discretionary power to challenge the return order by way of an extraordinary appeal on points of law (mimoriadne dovolanie). 14. On 26 March 2012 the District Court stayed the enforcement proceedings on the return order pending the outcome of the mother’s request to the Prosecutor General. 15. On 14 August 2012 the District Court resumed the enforcement proceedings after the Prosecutor General had found that there were no reasons to lodge an extraordinary appeal on points of law. 16. On 18 October 2012 and 26 June 2013 respectively, the District Court and, following an appeal by the applicant, the Košice Regional Court, found that the return order was not enforceable. They based their conclusions on the following two grounds. Firstly, they concluded that there already existed a previous decision on provisional measures, which had been delivered by the Michalovce District Court on 16 May 2011. That decision had temporarily entrusted the children to the care of the mother and required the applicant to pay child maintenance in the meantime. Those interim custody rights were to be determined later by the competent courts in Ireland. Secondly, the return order had failed to specify that it was directed at the mother or to give a precise time frame for its implementation. Given the fact that the mother had not been identified as the recipient and that the applicant had not been provisionally entrusted with the care of the children, the order could not be enforced. 17. Following the unsuccessful enforcement proceedings, the applicant applied to the same court which had delivered the return order, the Bratislava I District Court. He referred to the shortcomings in the order as identified by the enforcement courts and asked the court to specify to whom the order had been directed and to provide a time frame for the return of the children. The District Court concluded that the applicant’s action was res iudicata and dismissed it on 6 November 2014. 18. In the meantime, on 22 October 2013, the applicant challenged the enforcement courts’ decisions of 18 October 2012 and 26 June 2013 by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). 19. On 9 July 2014 the Constitutional Court declared the complaint admissible and on 27 May 2015 it found on the merits that the Košice Regional Court had violated the applicant’s rights, as specified below (“the first constitutional judgment”). 20. In particular, it found a violation of the applicant’s rights under Articles 19 § 1 (family life), 41 §§ 1 and 4 (protection of parenthood and children, right to child care), and 46 § 1 (judicial protection) of the Constitution, and under Article 6 § 1 (fairness) and Article 8 (family life) of the Convention. 21. The Constitutional Court found that the Regional Court’s decision had been taken on purely formal grounds and had been arbitrary and in contravention of the Code of Civil Procedure, the Brussels II bis regulation, the Hague Convention and the Constitution. That arbitrary decision had meant that the positive obligations guaranteed by Article 8 of the Convention and the applicant’s parental rights had been breached as well. 22. Consequently, the Constitutional Court quashed the contested decision, remitted the applicant’s appeal against the District Court’s decision of 18 October 2012 to the Regional Court for reexamination and awarded him 3,000 euros (EUR) in compensation for nonpecuniary damage. In addition, the Constitutional Court awarded the applicant everything he had claimed in legal costs (EUR 276.94). It noted that he had made no claim for costs in respect of his observations in reply to those of the enforcement courts concerned by his complaint and concluded that no award was therefore possible in that regard. 23. The judgment was final and not amenable to appeal. 24. Following the first constitutional judgment, the enforcement proceedings resumed before the Regional Court, which heard the case on 3 August 2015. It acknowledged that it was bound by the Constitutional Court’s judgment. However, having regard to the considerable length of time that had elapsed, it deemed it necessary to assess afresh all the circumstances decisive for the enforcement of the return order, such as the children’s whereabouts, their health and the possibility of their returning to Ireland. It therefore quashed the District Court’s decision under appeal and remitted the matter to it for re-examination. 25. On 15 April 2016 the District Court again declared enforcement of the order impermissible on the basis of newly obtained evidence. It relied on medical reports concerning the children’s health, a psychological report referring to negative consequences for them if they were separated from the mother and an opinion from the court-appointed guardian (the Michalovce office of employment, social affairs and family) about the stable family environment they had while living with their mother. It also took into account the children’s wish to stay with their mother and her new husband, their social ties in Slovakia, where they had been residing since January 2011, and the applicant’s lack of contact with them while in Slovakia. Relying on the Convention on the Rights of the Child and the Court’s Grand Chamber judgment in the case of Neulinger and Shuruk v. Switzerland (no. 41615/07, ECHR 2010), it concluded that their return to Ireland would go against their best interests. 26. Following an appeal by the applicant, the Regional Court upheld the lower court’s decision on 3 August 2016 and it became final and binding on 22 August 2016. 27. In the meantime, the applicant on 22 February 2016 lodged another constitutional complaint aimed at the enforcement proceedings held before the District Court (see paragraph 25 above). He alleged a violation of Articles 6 (length) and 8 (family life) of the Convention and their constitutional equivalents. 28. On 14 December 2016 the Constitutional Court found a violation of the applicant’s rights under both of those Convention provisions (“the second constitutional judgment”). When dealing with the applicant’s length of proceedings complaint, the Constitutional Court took into account that it was the first time the applicant had raised such a grievance. There had accordingly been no previous constitutional assessment of that matter to prevent it from assessing the impugned enforcement proceedings in their entirety, from when they had been initiated. Having regard to the sensitive nature of the matter and its importance for the applicant’s enjoyment of his parental rights, the Constitutional Court found that the District Court had proceeded with the matter over a long time (for more than four years) and inefficiently (it had stayed the proceedings, delivered an arbitrary enforcement decision on the first occasion, and had taken lengthy procedural steps). Notably, the Constitutional Court emphasised that it was precisely the passage of time which had led the District Court to dismiss enforcement of the return order. It also reproached the District Court for the inadequate way it had dealt with the mother’s procedural requests. It further stressed the particular nature of the enforcement of such return orders and pointed out that they required prompt and efficient decisionmaking that was in accordance with international standards. Moreover, the Constitutional Court found that there had been a violation of the applicant’s right to respect for his family life as a consequence of the fact that throughout the enforcement proceedings, whose length had been in breach of his right to a hearing within a reasonable time, he had been unable to assert his parental rights before the competent courts. 29. The Constitutional Court ordered the District Court to reimburse the applicant’s legal costs and to pay him EUR 4,000 in respect of nonpecuniary damage. 30. After the enforcement proceedings had been completed by a final and binding decision and before the second constitutional judgment had been issued, the applicant applied to the Constitutional Court a third time on 14 October 2016. He relied on that occasion on Article 6 (fairness and length) in conjunction with Articles 13 and 8 (family life) of the Convention and challenged the decisions of 15 April and 3 August 2016 (see paragraphs 26 and 27 above) on their merits. That complaint is still ongoing.