Cour européenne des droits de l'homme
European Court of Human Rights (ECrtHR)
UNITED STATES OF AMERICA
22 April 2010
European Convention on Human Rights (ECHR)
The father asserted infringement of Articles 6 (right to a fair trial) and 8 (right to respect for family life) of the ECHR. "Having discretion to characterise the facts of the case", the Court observed that the difference between the aims of the safeguards offered by Articles 6 and 8, respectively, "could, according to circumstance, justify the review of the same series of facts from the angle of either Article.
In addition, effective respect for family life requires the future relations between parent and child to be determined on the basis only of the relevant factors, and not by the mere passage of time. This is why the Court may also have regard, in the area of Article 8, to the manner and duration of the decision-making process".
Accordingly, it considered it appropriate to review the application from the angle of Article 8 of the ECHR only, "having regard to the procedural requirements inherent in Article 8 and considering that the duration of the proceedings for the child's return and the alleged inactivity of the Court in enforcing the applicant's right of access constitute the very essence of the claim based on Article 8".
Reviewing the application's admissibility, it held that the father could not be censured for failing to exhaust his remedies: "In order to ensure that there is a compensatory remedy in practice and that it is effective in relation to the alleged infringement of Article 8", the Court "needed certain evidence, such as domestic decisions granting reparation in similar cases".
It observed that the remedy available to the father in the Czech Republic was "in damages only", and appeared "inadequate (at least by itself) to remedy the infringements alleged in the case in point". The father complained mainly of the duration of the proceedings, a complaint in respect of which a compensatory remedy might by itself be "regarded as adequate for the purposes of the requirements of Article 13".
However, "in cases such as this, of a special nature and involving particular issues, and in which the duration of the proceedings is clearly decisive for family life", a "stricter approach" should be taken, "requiring the States to set up what is for the time being only recommended in situations of "mere" length of proceedings, i.e., remedies both preventive and in damages.
The affirmative obligation for States to take measures suited to securing the applicants' right to respect for their family lives within the meaning of Article 8 could be made illusory if the parties concerned had only a remedy in damages in this respect, that could result only in the award after the event of pecuniary reparation (and furthermore, only in respect of procedural delays)".
In the case in point, according to the Court, it was "indisputable that the duration of the proceedings for the child's return had decisive consequences for the quality of the [father's] family life, since as a result of the child's continuing removal, he was considerably restricted in the exercise of the parental rights he had enjoyed in the United States of America. Yet the purpose of the Hague Convention [was] precisely to prevent such a situation by very quickly restoring the statu quo ante, i.e., securing the child's immediate return to its customary living environment and enforcing the rights of custody and access as they existed prior to the removal".
It stated that "it follows that in order to prevent or remedy infringements such as those alleged by the applicant in the case in point, States must implement a legislative environment and remedies allowing the grant of a ruling on a possible return of the child to be obtained very quickly, so as to put an end to any procrastination that might occur in return proceedings, to act appropriately in order to safeguard the connections between the removed child and the parent no longer living with it, or to challenge the ineffective exercise of the right of access. It is only if such remedies fail to provide the expected results that the applicant should be guided towards pecuniary reparation".
On the merits, the Court pointed out first that it was incumbent primarily on the domestic authorities to interpret and apply the domestic law, including the international treaties integrated into it. It specified that it retained jurisdiction, however, to review the procedure applied and in particular to determine whether the domestic interpretation of the safeguards under the Hague Convention was the source of an infringement of Article 8 of the ECHR.
It stated that it fully concurred "in the philosophy underlying [the Hague Convention]. Inspired by the wish to protect the child, considered as the foremost victim of the trauma caused by its removal or retention, that instrument is intended to fight the multiplication of international child abductions. In cases of this kind, the adequacy of a measure is judged by the promptness of its implementation.
Proceedings relating to the return of an abducted child, including prior proceedings, or the enforcement of rulings delivered at their outcome, demand expeditious treatment, as the passage of time may have irreparable consequences for the relationship between the child and the parent not living with it.
The point, once the conditions for application of the Hague Convention are met, is to return to the statu quo ante as soon as possible in order to avoid the legal consolidation of initially-unlawful factual situations, and to leave the issues relating to custody and parental authority to the domestic courts at the location of the child's habitual residence, in accordance with Article 19 of that Convention".
It further stressed "that Article 11 of the Hague Convention requires the judicial or administrative authorities seized to act "expeditiously" for the child's return, and any failure to act within six weeks may give rise to a request for explanations".
In the case in point, more than 20 months had elapsed before delivery of a ruling finally determining the issue of return. The return order delivered in the first instance had been reversed on appeal 14 months later. The Court noted that it could be "reasonably supposed that after the passage of such a long time, restoration of the statu quo ante was no longer conceivable in practice: that would have implied returning the child to an environment from which it had been removed at the age of one and a half years and no longer known to it, which would have been an experience all the more uncomfortable since it displayed an autistic condition requiring stability and observance of certain stereotypes".
In addition, in accordance with Article 16 of the Hague Convention, the Czech courts had had to wait until the end of the return proceedings before ruling on the father's exercise of parental authority. Throughout all this time, therefore, the father could exercise his parental rights only under provisional measures granting him a right of access. Yet the mother was obstructive.
Nevertheless, though informed after the event of the father's difficulties in exercising the rights of access that had been granted to him, the courts had taken "sua sponte no suitable measure to create for the future the conditions required for performance of such right of access.
In the circumstances of the case, the courts could have contemplated taking coercive measures against the mother or sought the assistance of social services, or even child psychiatrists or psychologists, to facilitate contacts between the parties concerned". The Court pointed out that it was incumbent nonetheless "on every Contracting State to develop an appropriate legal arsenal sufficient to secure compliance with its affirmative obligations under Article 8 of the Convention".
It unanimously deduced an infringement of Article 8 of the ECHR. It awarded the father 15,000 Euros for intangible damage, and 5,000 Euros in costs.
Author of summary: Aude Fiorini