CASE OF LÓPEZ GUIÓ v. SLOVAKIA
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1967 and lives in Madrid. 6. He was living in Spain together with a Slovak national, to whom he was not married. On 27 May 2009 a child was born to the applicant’s partner (“the mother”) in Slovakia. The applicant is the father of the child. The child is both a Slovak and a Spanish national. 7. Following the birth, the applicant, the mother and the child lived together with the applicant in Spain until 21 July 2010, when the mother took the child from Spain to Slovakia. Neither of them has ever returned. 8. On 31 August 2010 the mother petitioned the District Court (Okresný súd) in Martin (Slovakia) to make an order governing the exercise of parental rights and responsibilities in respect of the child. At the same time, she requested that, pending the final outcome of the proceedings, the District Court deal with these matters by way of an interim order. 9. On 14 September 2010 the District Court issued an interim order, pursuant to which the child was placed with the mother and the applicant was ordered to contribute towards the child’s maintenance pending the outcome of the proceedings on the merits. It was submitted by the applicant and not disputed by the Government that the written version of the interim order was not served on the applicant before 9 February 2011 and that, upon its service, the applicant was contributing to the child’s maintenance as ordered. 10. The interim order remained in force until the proceedings on the merits of the mother’s petition were terminated by the District Court on 28 February 2011 and, following the mother’s appeal, by the Regional Court (Krajský súd) in Žilina (Slovakia) on 30 June 2011. These courts found that the relevant law for the determination of jurisdiction in the matter was 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”) and that, under Regulation No. 2201/2003, the crucial criterion for establishing jurisdiction over the matter was the place of habitual residence of the child. Having regard to the conclusions that had meanwhile been reached in that respect by the Bratislava I (Slovakia) District Court and the Bratislava Regional Court (see paragraphs 20 and 23 below), the place of the child’s habitual residence was Spain, and the Slovakian courts had no jurisdiction to entertain the matter. 11. Meanwhile, on 5 August 2010, the applicant had complained about the removal and retention of the child by the mother before the Spanish Central Authority responsible for implementing the Hague Convention. 12. Subsequently, on 21 October 2010, the applicant lodged an application with the Bratislava I District Court under the Hague Convention and Regulation No. 2201/2003. In his application, he argued that the child’s habitual residence was in Spain and that the mother had removed or retained the child wrongfully within the meaning of Article 3 of the Hague Convention. Accordingly, the applicant sought an order for the child’s return to Spain. 13. On 3 November 2010 the District Court appointed the social services department for the city of Martin to represent the child’s interests in the proceedings. 14. The District Court called a hearing for 11 November 2010. However, two days before that date, that is to say on 9 November 2010, the mother’s lawyer asked for an adjournment on the grounds that the summons had only been received on that day, that a copy of the application had been served on them without enclosures, and that they had consequently not had adequate time and facilities to prepare. 15. On 10 November 2010 the District Court informed the mother’s lawyer, in response to her request of the previous day, that, in view of the short time limits in proceedings under the Hague Convention, it was not possible to have the hearing postponed and that it would take place. On the same day the mother’s lawyer inspected the case file; informed the court that, nevertheless, and on the same grounds as previously relied upon, they would not appear; and insisted that the hearing be adjourned. 16. On 11 November 2010 the District Court held a hearing as scheduled, in the presence of the applicant and his lawyer, who both made oral submissions. Neither the mother, nor the child, nor the social services department on the child’s behalf were present. The hearing was adjourned until 18 November 2010. 17. On 16 November 2010 the mother’s lawyer again inspected the case file and, on 18 November 2010, she lodged extensive written submissions. She explained the development of her client’s relationship with the applicant and described it. She submitted that, in connection with her falling out with the applicant, the mother had sought care from a mental health specialist; and that the child was closely attached to the mother and their separation was unthinkable. In addition, she submitted a letter from an association in Slovakia supporting women in need attesting that since 26 August 2010 the mother had been receiving their support in connection with allegations she had made that the applicant had been mistreating her. While admitting that there was no risk of direct harm to the child, the lawyer submitted that the applicant’s behaviour towards the mother should nonetheless be taken into account. 18. On 18 November 2010 the District Court held a hearing in the presence of the parties and their legal representatives, who all made oral submissions. The social services department on behalf of the child were not present. 19. At the conclusion of the hearing, the District Court allowed the applicant’s claim and ordered the child’s return to Spain. The order had the procedural form of a decision (uznesenie). 20. The District Court established that the child’s habitual residence was in Spain, that the mother had removed the child from there wrongfully, and that there were no obstacles to the return of the child there within the meaning of the Hague Convention. In addition, the District Court pointed out that its ruling in the present proceedings had nothing to do with questions of care and residence. 21. As to the mother’s specific claim that the return of the child should be declined in view of the applicant’s behaviour toward the mother, the District Court found that she had failed to substantiate her allegations. The letter from the association that had been offering care and support to the mother was solely based on the mother’s allegations and as such could not serve to support those allegations. In her own words, the applicant had never mistreated her physically and there was nothing to support her allegations of psychological mistreatment. In that respect, the District Court found it of relevance that the mother had not brought the alleged psychological mistreatment to the attention of the Spanish authorities at the time when it had allegedly taken place. 22. On 29 December 2010 the mother filed an appeal (odvolanie) with the Bratislava Regional Court. In the first place, she reiterated her argument concerning the time and facilities made available for preparation prior to the hearing of 11 November. Moreover, she challenged the District Court’s conclusions as regards the letter from the association that had been providing her with care and support and contended that the Distract Court had failed to obtain a report from the mental health specialist treating her. In addition, she argued that the District Court had failed to take into account the loss which the child would suffer by separation from the mother. In that respect, she relied on a written statement of the court-appointed representative for the child. Moreover, the mother claimed that risk within the meaning of Article 13 (b) of the Hague Convention did not have to be imminent, but could lie in the future. Lastly, in connection with the District Court’s conclusions as regards the habitual residence of the child and the wrongfulness of the child’s removal, the mother submitted that it had been her and not the applicant who had actually been taking care of the child and was better disposed and equipped to do so. 23. On 21 January 2011, in the procedural form of a decision, the Regional Court dismissed the appeal and upheld the first-instance decision. The Regional Court fully endorsed the District Court’s reasoning and conclusions. In addition, it pointed out that the object and purpose of the Hague Convention was to ensure immediate restoration of the status quo which has been unlawfully changed by a person who wrongfully removes or retains a child by returning the child to the country of his or her habitual residence so that questions on the merits concerning care and residence may be examined by the court in that country. The purpose of the present proceedings had nothing to do with such substantive questions and they fell within the exclusive jurisdiction of the courts of the country of the child’s habitual residence. The Regional Court further held that the Hague Convention and Regulation No. 2201/2003 represented a departure from the traditional private-international-law principle of nationality towards a principle based on the child’s habitual residence. On the facts of the case, the Regional Court found no merit in the mother’s argument concerning the time and facilities given for preparation prior to the hearing of 11 November 2010, pointing out that time-limits under the Hague Convention had precedence over time-limits under the national procedural rules; that the mother and her lawyer had been duly summoned to the hearings; and that they had been granted ample opportunities to familiarise themselves with the case and to answer it. As to the mother’s complaints of the District Court’s alleged failure to obtain evidence she had sought to have adduced, the Regional Court pointed out that, under Article 13 of the Hague Convention, in return proceedings it was the person opposing the return who bore the burden of proof. Moreover, and in any event, some of the evidence adduced by the mother bore on questions falling outside of the scope of the present proceedings. As to the mother’s specific allegations of mistreatment, these were contradicted by the contents of the case file, in particular by copies of her e-mail communications with the applicant and his sister, as well as by photographs of the mother, the child and the applicant from the period between the child’s birth and her wrongful removal from Spain. Lastly, the Regional Court held that the order for the child’s return by no means implied her separation from the mother, as the mother was free to return to Spain with the child and to assert her claims in respect of the child before the courts having jurisdiction to entertain them. 24. The order for the child’s return to Spain became final and binding on 4 February 2011. 25. Subsequently, on 15 February 2011, the mother lodged an appeal on points of law (dovolanie) with the Supreme Court (Najvyšší súd) of Slovakia. The applicant was then allowed to submit observations in reply. 26. On 22 March 2011 the Supreme Court declared the appeal inadmissible. As to the applicable principles, it acknowledged that, in Hague Convention proceedings, the courts are duty-bound diligently to establish the facts, and not to limit themselves to the evidence adduced by a single party to the proceedings. As to the specific facts of the present case, the Supreme Court observed that the applicant’s application for the commencement of the Hague Convention proceedings had been served on the mother without its enclosures. However, it held that this error had quickly been corrected when, on 10 November 2010, the mother’s lawyer had inspected the case file (see paragraphs 11, 14 and 15 above). Moreover, the Supreme Court held that it had been wrong of the Bratislava I District Court to hold the hearing of 11 November 2010 in the absence of the mother and her lawyer and without giving them adequate time and facilities to prepare. However, that error had also been rectified by hearing the case again on 18 November 2010. At that hearing, the mother had made extensive submissions and, in addition, she had had further ample opportunity to make her case before the Court of Appeal. Finally, as to the child, whose court-appointed representative (see paragraph 13 above) had failed to show up without any excuse at either of those hearings, the Supreme Court observed that the representative had duly been summoned and held that, in the circumstances, the representative’s absence had been no obstacle to the District Court proceeding with the determination of the case. 27. In parallel to her appeal on points of law, the mother also petitioned the Public Prosecution Service (“PPS”) to exercise their discretionary power to challenge the lower courts’ decisions by way of an extraordinary appeal on points of law (mimoriadne dovolanie). 28. The PPS decided not to act upon the petition, on the grounds that the mother’s appeal on points of law and her later petition for reopening (see paragraphs 29 et seq. below) were still pending, these remedies having precedence over an extraordinary appeal on points of law. This position was upheld in a letter of the Bratislava Regional Office of the PPS of 12 January 2012. In that letter, the PPS endorsed the reasoning behind the judgment of the Supreme Court of 22 March 2011 (see paragraph 26 above) and, in addition, expressed a detailed and reasoned opinion that the order for the child’s return was correct on merits. 29. In addition to the extraordinary remedies mentioned above, on 20 June 2011 the mother filed a petition to have the Hague Convention proceedings reopened (návrh na obnovu konania). 30. The petition was dismissed by the Bratislava I District Court on 5 August 2011 and, following the mother’s appeal, by the Bratislava Regional Court on 25 October 2011. The grounds for the rejection were that the Hague Convention proceedings had been concluded in the procedural form of a decision (see paragraph 19 and 23 above), as opposed to a judgment (rozsudok), and that, in the circumstances, the reopening of proceedings concluded by a decision was not permissible by law (Article 228 of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – the “CCP”). 31. By letter of 12 February 2011 the applicant invited the mother to abide by the return order, to no avail. 32. On 22 February 2011 the applicant applied to the Martin District Court for a warrant to have the return order enforced, pointing out that the order had become final and binding on 4 February 2011 (see paragraph 24 above). 33. On 16 March 2011 the District Court called upon the mother to abide by the return order voluntarily and summoned her for an interview on 31 March 2011. In response, the mother asked for the proceedings to be stayed in view of her extraordinary appeal and petition for reopening that were still pending (see paragraphs 27 – 30 above), and she did not show up for the interview. 34. On 17 March 2011 the District Court appointed the Martin Social Services Department as the representative of the child’s interests for the purposes of the enforcement proceedings. 35. The District Court heard the enforcement case on 28 April and 13 May 2011. At a further hearing called specifically for that purpose on 16 May 2011, it delivered a warrant for the enforcement of the return order and authorised the applicant to carry out the enforcement. 36. The mother and the child’s court-appointed representative appealed to the Žilina Regional Court, which – on 7 September 2011 – decided to stay the proceedings on their appeal. It did so observing that, in the meantime, the mother had petitioned for reopening of the Hague Convention proceedings (see paragraph 29 above) and that, if her petition was granted, the enforcement proceedings would be stayed by operation of law. 37. Following the dismissal of the mother’s petition for reopening (see paragraph 30 above), on 24 November 2011 the Regional Court resumed the appeal proceedings, only to stay them again, on 1 December 2011, this time in view of the mother’s petition to the PPS for an extraordinary appeal on points of law (see paragraph 27 above), which was still pending. 38. Following the dismissal by the PPS of the mother’s petition for an extraordinary appeal (see paragraph 28 above), the appeal proceedings were again stayed on 2 February 2012, this time on the basis of the judgment (nález) of the Constitutional Court (Ústavný súd) of 13 December 2011 (see paragraphs 42 et seq. below). 39. On 1 July 2011, acting in her own name as well as that of the child, the mother challenged the decision of the Supreme Court of 22 March 2011 to reject the appeal on points of law (see paragraph 26 above) by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). 40. The complaint was directed against the Supreme Court. The applicant was neither a party to the ensuing proceedings nor informed of them. 41. On 18 October 2011 the Constitutional Court declared the complaint admissible. 42. On 13 December 2011 it gave a judgment dismissing the complaint on the merits in so far as it had been brought by the mother and, at the same time, in so far as the child was concerned, finding that the Supreme Court had violated the child’s rights as specified below. 43. In particular, a violation of the child’s rights was found under Articles 46 § 1 (judicial protection), 47 § 3 (procedural equality) and 48 § 2 (hearing in one’s presence and opportunity to comment on evidence) of the Constitution; Article 6 § 1 (fairness) of the Convention; and Articles 3 §§ 1 (consideration of the best interests of the child) and 2 (protection and care necessary for the child’s well-being) and 12 §§ 1 and 2 (expression of the child’s views and being heard in judicial proceedings) of the Convention on the Rights of the Child. 44. The Constitutional Court endorsed the Supreme Court’s view that the District Court’s error in respect of the mother had been rectified at the hearing of 18 November 2010. 45. In so far as the child was concerned, however, the child’s views were to have been expressed by the court-appointed representative, whose failure to appear had not been a valid reason for ruling on the matter without having the child’s views established. There were tools, including procedural fines, for ensuring the proper involvement of the court-appointed representative in the proceedings. 46. Consequently, the Constitutional Court quashed the challenged decision and remitted the mother’s appeal on points of law to the Supreme Court for re-examination. 47. The judgment was final and not amenable to appeal. 48. On 22 March 2012 the Supreme Court re-examined the mother’s appeal on points of law of 15 February 2011 (see paragraph 25 above) against the return order. Being bound by the Constitutional Court’s assessment of the case, it quashed the order and remitted the case to the first-instance court with a view to having the views of the child established by means appropriate for the child’s age and maturity. 49. The Bratislava I District Court heard the case on 6 and 27 June 2012. A further hearing was scheduled for 18 July 2012, but it was cancelled on the grounds that a few days before, the mother’s lawyer had been appointed the head of the Slovakian Central Authority responsible for implementing the Hague Convention. Consequently, the lawyer had had to resign and the mother had appointed a new lawyer. At a subsequent hearing on 22 August 2012, the District Court ruled that the child was not to be returned to Spain. This ruling was upheld on 20 November 2012 by the Bratislava Regional Court following the applicant’s appeal. 50. The courts’ reasoning may be summarised as follows. The child’s habitual residence for the purposes of the Hague Convention proceedings was Spain and her retention by the mother in Slovakia had been wrongful. However, in view of the mother’s objections, it had to be examined whether there was any grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention. 51. For that purpose, in addition to the other evidence taken, the District Court had interviewed the child, aged three at the time, and the child’s courtappointed representative, and the courts had also examined complex documentary evidence, including a report from the Spanish Central Authority as to the circumstances to which the child would be returned there. 52. The courts were guided by the best interests of the child, which they considered to be twofold, namely the interest in preserving relations with the child’s family and the interest in developing in a healthy environment. 53. The courts found that the child was attached to the mother and, in view of the child’s age, also to the child’s home environment, to which the child had been introduced when it had been fourteen months’ old. The child only spoke Slovak, attended a kindergarten in Slovakia and was part of an extended family circle there. The courts concluded that the child’s removal from this environment would give rise to the risk of considerable detriment to the child and that, in the circumstances, the child’s best interests prevailed over those of the applicant. As regards the applicant, the courts concluded that it had been two years since he had seen the child, that he had not been displaying a genuine interest in the child and that he had not been contributing to the child’s maintenance. A separation of the child from the mother did not come in question. However, the mother’s vulnerable financial situation made it impossible to ensure proper care for the child in Spain. The child’s removal to Spain with the mother would thus expose the child to the risk of living in poverty. 54. In view of those circumstances, the courts examined whether adequate arrangements within the meaning of Article 11 § 4 of the Regulation No. 2201/2003 had been made to secure the protection of the child on its return. In that respect, the courts expressed the view that adequate arrangements had to eliminate with the highest possible probability the risks that the child would face and that they should entail the provision of low-rent housing for the mother and the child, free of charge specialised social and psychological counselling, and a detailed explanation of the welfare benefits and supervision by social services available to the mother in Spain. 55. The courts held that, in so far as any guarantees had been identified by the Spanish central authority, they were not specific enough. In so far as the applicant had been offering to cover the costs of the mother’s and the child’s air travel, the child’s health insurance and kindergarten in Spain, and a room free of charge in his apartment there, these guarantees were found not to be adequate and the courts noted that their “doubts as to whether he would actually keep his promises had not been assuaged”. 56. The courts considered that they had established an overall picture of the social environment to which the child would return and had thoroughly examined the entire family situation. Based on the findings mentioned above, they concluded that the child’s return under the Hague Convention was not permissible.