L.G.R. AND A.P.R.  v. SLOVAKIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The first applicant is a British national, who was born in 2006 and is presently residing in Bratislava (Slovakia). The application has been submitted on the first applicant’s behalf by the first applicants’ father, the second applicant, who has parental responsibility for the first applicant as a matter of English law. The second applicant is a British national. He was born in 1965 and lives in Newton St. Cyres (the United Kingdom). 2. The President granted the applicants’ request for their identities not to be disclosed to the public (Rule 47 § 3). 3. The applicants were represented before the Court by the Aire Centre in London. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 4. On 20 April 2012 the Government of the United Kingdom were informed of the case and invited to exercise their right of intervention (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), to which invitation they have not responded. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 2006, prior to the first applicant’s birth, the second applicant married the first applicant’s mother, a Slovak national. The family lived in England. 7. On 24 July 2007 the mother informed the second applicant that she and the first applicant would not be returning to the United Kingdom from holiday in Croatia and that she intended to take the first applicant to Slovakia and to settle there permanently. 8. On 13 August 2007 the mother and the first applicant, who was then less than a year old, travelled to Slovakia and have not returned to the United Kingdom since. 9. On 10 November 2008 an English court granted the couple a divorce, which was finalised on 6 January 2009. 10. Meanwhile, on 7 November 2007, the second applicant had commenced proceedings in the Slovakian courts for the return of the first applicant to England and Wales under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). 11. On 14 December 2007 and 31 March 2008, respectively, the Bratislava II District Court (Okresný súd) and, following the mother’s appeal (odvolanie), the Bratislava Regional Court (Krajský súd) ordered the return of the first applicant to England and Wales as the country of the child’s habitual residence. The courts emphasised that the order did not imply that the first applicant should reside with either parent, but merely required that the status quo ante be restored so that questions of residence and contact might be determined by the English courts, which had jurisdiction over them. The return order became enforceable on 9 June 2008. 12. On 22 December 2008 the Prosecutor General acceded to a petition by the mother and exercised his discretionary power to challenge the return order by way of an extraordinary appeal on points of law (mimoriadne dovolanie). It was argued that the courts had failed properly to establish whether the first applicant had been wrongfully removed or retained and whether there were grounds for not ordering the first applicant’s return under Article 13 of the Hague Convention. At the same time, the Prosecutor General suspended the enforceability of the return order. 13. On 4 February 2009, in response to an enquiry made on the second applicant’s behalf, the President of the District Court provided the office of the President of Slovakia with an update on the state of the proceedings. She added the following comment: “It does not behove me to judge the actions of the Office of the Prosecutor General. I am not privy to the reasons why an extraordinary appeal on points of law was lodged. I detect a problem in the system, which allows for such a procedure even in respect of decisions on the return of minor children abroad (‘international child abductions’). Irrespective of the outcome of the specific case, the possibility of lodging an appeal on points of law and an extraordinary appeal on points of law in cases of international child abduction protracts the proceedings and negates the object of the [Hague Convention], which is as expeditious a restoration of the original state [of affairs] as possible, that is to say the return of the child to the country of the child’s habitual residence within the shortest possible time.” 14. On 30 June 2009 the Supreme Court (Najvyšší súd) ruled on the extraordinary appeal by quashing the return order and remitting the matter to the first-instance court for re-examination. 15. On 29 March 2010 the District Court dismissed the second applicant’s application for the return of the first applicant. Relying on Article 13 of the Hague Convention, it observed that the first applicant had been living in Slovakia for two-and-a-half years and had developed a settled home life there. The return of the first applicant was thus “not in the interests of the child and the child’s healthy mental development”. 16. On 25 August 2010 the Regional Court quashed the decision of 29 March 2010 following the second applicant’s appeal and remitted the case to the first-instance court, finding that the latter had failed to provide adequate reasons for its decision. 17. On 8 November 2010 and, respectively, 15 March 2011, the District Court and, following the mother’s appeal, the Regional Court again ordered the return of the first applicant to England and Wales. The courts found that the second applicant had shown that appropriate measures had been taken to secure the first applicant’s rights and interests after his return and that the mother had failed to show that the return of the first applicant was contrary to the Hague Convention. 18. On 11 April 2011 the mother lodged an appeal on points of law (dovolanie) and subsequently sought to have the enforcement of the return order suspended. 19. On 22 June and 4 November 2011, respectively, the District Court summoned the mother and interviewed her and the second applicant with a view to having the return order complied with, to no avail. 20. Following the interview of 4 November 2011, on the same day, the District Court dismissed the mother’s motion for the enforcement proceedings to be suspended. Upon her appeal, that decision was quashed. Subsequently, the enforcement proceedings were terminated in view of the Supreme Court’s decision on the mother’s appeal on points of law (see paragraph 22 below). The second applicant appealed against that decision and the proceedings are still pending. 21. Meanwhile, on 15 November 2011, the Prosecutor General informed the mother, in response to a petition filed by her, that he had no intention of challenging the new return order by an extraordinary appeal on points of law. 22. However, on 12 December 2011, following the mother’s appeal on points of law, the Supreme Court quashed the Regional Court’s decision of 15 March 2011 to dismiss her appeal against the new return order and remitted the appeal to the Regional Court for re-examination. It held that the latter had failed to provide adequate reasons for dismissing the mother’s arguments under Article 13 of the Hague Convention. 23. Following the Supreme Court’s judgment of 12 December 2011, the case was remitted to the first-instance court. The proceedings are still pending. 24. Meanwhile, on 24 July 2008 and 3 February and 1 October 2009, the High Court of Justice of England and Wales issued three orders to the mother to return the first applicant to the jurisdiction of England and Wales. At the same time, it issued certificates pursuant to Article 41 of 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 (“Regulation No. 2201/2003”) providing the second applicant with contact rights in respect of the first applicant in Slovakia. 25. Since the first applicant was taken to Slovakia, the applicants have had intermittent contact. 26. On 17 July and 24 August 2009, respectively, the District Court and, following the mother’s appeal, the Regional Court ordered the mother to facilitate contact between the applicants. 27. According to the Government, the mother has not been hindering contact between the applicants. However, in the applicants’ submission, the mother has often obstructed the second applicant’s visits from the first applicant and he continues to experience difficulties seeing the first applicant. 28. In their observations in reply to the present application, the Government submitted a copy of an undated letter from the mother of the first applicant to the Government in which she declared that both she and the second applicant had equal parental rights and responsibilities in respect of the first applicant and that she therefore disagreed with the first applicant’s introducing an application under Article 34 of the Convention. She considered that such a course of action exclusively benefited the interests of the second applicant and was in fact contrary to the interests of the first applicant. 29. The relevant provisions of the Hague Convention, the United Nations Convention on the Rights of the Child, the Charter of Fundamental Rights of the European Union and the Regulation No. 2201/2003 have recently been summarised in the Court’s judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 34-42, ECHR 2013). 30. Article 127 was re-codified by Constitutional Law no. 90/2001 Coll., with effect from 1 January 2001. It reads as follows: “1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person’s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person’s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated. 4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.” 31. The U.N. Convention on the Rights of the Child entered into force in respect of Slovakia on 6 February 1991 (Notice of the Ministry of Foreign Affairs no. 104/1991 Coll.), while the Hague Convention did so on 1 February 2001 (Notice of the Ministry of Foreign Affairs no. 119/2001 Coll.). 32. The relevant provisions concerning appeals on points of law are summarised, for example, in the Court’s decision in Ringier Axel Springer Slovakia v. Slovakia (no. 35090/07, §§ 65-8, 4 October 2011, with further references). Appeals on points of law have no automatic suspensive effect, the power to suspend the enforceability of the impugned decision being entrusted to the Supreme Court (Article 243). 33. Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq. 34. The Prosecutor General has the power to challenge a decision of a court by means of an extraordinary appeal. He or she may do so upon a petition of a party to the proceedings or another person concerned or injured by the decision, provided that the Prosecutor General concludes that: the final and binding decision has violated the law; the protection of the rights and legitimate interests of individuals, legal entities, or the State requires that such an appeal be brought; such protection cannot be achieved by other means; and the matter at hand is not excluded from judicial review (Articles 243e § 1 and 243f § 2). 35. An extraordinary appeal may only be aimed at a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision (Article 243e § 2). Unless a statute provides otherwise, the Prosecutor General is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4). 36. Further conditions of admissibility of an extraordinary appeal are listed in Article 243f § 1. They comprise (a) major procedural flaws within the meaning of Article 237 (in that respect see, for example, Ringier Axel Springer Slovakia, v. Slovakia, no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) wrongful assessment of points of law. 37. An extraordinary appeal is to be lodged with the Supreme Court within one year of the contested judicial decision’s becoming final and binding (Article 243g). 38. If the Prosecutor General concludes, upon a petition of a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic loss or other serious irreparable consequences, the extraordinary appeal may be filed without reasons for appeal being stated. The reasons then must be stated within sixty days of the lodging of the extraordinary appeal with the Supreme Court, failing which the proceedings are to be discontinued (Article 243h §§ 3 and 4). 39. If the extraordinary appeal on points of law is accompanied by a request that that the enforceability of the contested decision be suspended, its enforceability is to be suspended upon the extraordinary appeal being lodged with the Supreme Court (Article 243ha § 1). The duration of such a suspension is regulated by Article 243ha § 2, pursuant to which that suspension ceases (a) when the request is dismissed or (b) with the decision on the extraordinary appeal, unless extended by the Supreme Court no later than one year from the lodging of the extraordinary appeal with it.