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Case Name
Macready c. République tchèque (Requêtes Nos 4824/06 et 15512/07)
INCADAT reference
HC/E/CZ 1159
Court
Cour européenne des droits de l'homme
European Court of Human Rights (ECrtHR)
Peer Lorenzen (président); Renate Jaeger, Karel Jungwiert, Rait Maruste, Mark Villiger, Isabelle Berro-Lefèvre, Zdravka Kalaydjieva (juges); Claudia Westerdiek (greffière de section)
States involved
UNITED STATES OF AMERICA
CZECH REPUBLIC
Decision
22 April 2010
Final
European Convention on Human Rights (ECHR)
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Articles 6(1), 8 and 41 of the European Convention on Human Rights
Bianchi c. Suisse, No 7548/04, § 113, 22 juin 2006; Carlson c. Suisse, No 49492/06, §§ 69-70, 6 novembre 2008; R.R. c. Roumanie (No 1), No 1188/05, § 145 in fine et aussi §§ 171-17410 novembre 2009; Vokurka c. République tchèque (Déc.), No 40552/02, § 65, 16 octobre 2007; Zavřel c. République tchèque, No 14044/05, § 36, 18 janvier 2007; Andělová c. République tchèque, No 995/06, § 84, 28 février 2008; Leschiutta et Fraccaro c. Belgique (Déc.), Nos 58081/00 et 58411/00, 3 avril 2007; Sürmeli c. Allemagne (GC), No 75529/01, §§ 99-101, CEDH 2006-VII; Iglesias Gil et A.U.I. c. Espagne, No 56673/00, § 61, CEDH 2003-V; Maumousseau et Washington c. France, No 39388/05, §§ 69-83, CEDH 2007-XIII; Ignaccolo-Zenide c. Roumanie, No 31679/96, § 102, CEDH 2000-I ;Sylvester c. Autriche, Nos 36812/97 et 40104/98, § 83, 24 avril 2003.
INCADAT comment
Inter-Relationship with International / Regional Instruments and National Law
European Court of Human Rights (ECrtHR) Judgments
SUMMARY
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Facts
Some time later, the father learnt that the mother had taken the child to the Czech Republic. In June 2004, the mother initiated custody proceedings in the Czech Republic. When the Court was informed of the unlawfulness of the removal and the return application made by the father (in October 2004), those proceedings were held in abeyance until 2007.
On 27 April 2005, the Court ordered the child's return. The mother appealed. She asserted in particular that the child probably suffered from autism, so that the Regional Court asked for an expert opinion. On 29 June 2006, the Regional Court reversed the April 2005 judgment on the grounds that while the removal was wrongful, return should not be ordered because it would cause the child irreparable mental disturbance that could worsen his already fragile condition.
In February 2007, the Supreme Court dismissed the father's appeal. The father appealed to the Constitutional Court, which dismissed his appeal.
The father attempted to see the child several times between October 2004 and 2006. Every time, he obtained temporary measures permitting him to see the child, but the mother impeded them on many occasions. The father claimed indemnification against the Ministry of Justice in respect of the courts' improper conduct in the proceedings relating to the child's return and exercise of rights of access. His claim was dismissed. He applied to the European Court of Human Rights.
Ruling
Grounds
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
INCADAT comment
European Court of Human Rights (ECrtHR) Judgments
Faits
Quelques temps plus tard, le père apprit que la mère avait emmené l'enfant en République tchèque. En juin 2004, la mère entama une procédure de garde en République tchèque. Lorsque le tribunal fut informé de l'illicéité du déplacement et de la demande de retour introduite par le père (en octobre 2004) cette procédure fut suspendue jusqu'en 2007.
Le 27 avril 2005, le tribunal ordonna le retour de l'enfant. La mère forma appel. Elle fit entre autres valoir que l'enfant souffrait sans doute d'autisme, de sorte que le tribunal régional demanda une expertise. Le 29 juin 2006, le tribunal régional réforma le jugement d'avril 2005 au motif que si le déplacement était illicite, le retour ne devait être ordonné car il provoquerait chez l'enfant des troubles psychiques irréversibles susceptibles d'aggraver son état, déjà fragile.
En février 2007, la Cour suprême rejeta le recours du père. Le père saisit la Cour constitutionnelle qui rejeta son recours.
Le père tenta à plusieurs reprises de voir l'enfant entre octobre 2004 et 2006. Il obtint à chaque fois des mesures provisoires l'autorisant à voir l'enfant, mais la mère y fit obstacle à de nombreuses reprises. Le père demanda au Ministère de la Justice de l'indemniser au titre de la conduite irrégulière des tribunaux dans les procédures relatives au retour de l'enfant et à l'exercice du droit de visite. Il fut débouté. Il saisit la Cour européenne des droits de l'homme.
Dispositif
Motifs
Convention européenne des droits de l’homme (CEDH)
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