CASE

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Case Name

Karoussiotis c. Portugal (Requête No 23205/08)

INCADAT reference

HC/E/PT 1166

Court

Name

Cour européenne des droits de l'homme

Level

European Court of Human Rights (ECrtHR)

Judge(s)
Françoise Tulkens (présidente); Ireneu Cabral Barreto, Dragoljub Popović, Nona Tsotsoria, Işıl Karakaş, Kristina Pardalos, Guido Raimondi (juges); Stanley Naismith (greffier de section)

States involved

Requesting State

GERMANY

Requested State

PORTUGAL

Decision

Date

1 February 2011

Status

Final

Grounds

European Convention on Human Rights (ECHR)

Order

-

HC article(s) Considered

11

HC article(s) Relied Upon

-

Other provisions
Articles 2, 10 and 11 Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003); Articles 6, 8 and 35 of the European Convention on Human Rights
Authorities | Cases referred to
Maire c. Portugal (no 48206/99, CEDH 2003-VII); Zavřel c. République tchèque, no 14044/05, § 32, 18 janvier 2007 ; Kříž c. République tchèque (déc.), no 26634/03, 29 novembre 2005) ; Civet c. France [GC], no 29340/95, § 41, CEDH 1999-VI ; Cardot c. France, 19 mars 1991, § 34, série A no 200 ; Elçi et autres c. Turquie, nos 23145/93 et 25091/94, §§ 604 et 605, 13 novembre 2003 ; Calcerrada Fornieles et Cabeza Mato c. Espagne, no 17512/90, décision du 6 juillet 1992, Décisions et Rapports (DR) 73, p. 214 ; Folgero et autres c. Norvège (déc.), no 15472/02, 14 février 2006 ; Smirnova et Smirnova c. Russie (déc.), nos 46133/99 et 48183/99, 3 octobre 2002 ; Celniku c. Grèce, no 21449/04, § 39, 5 juillet 2007 ; Lukanov c. Bulgarie (déc.), no. 21915/93, 12 janvier 1995, DR 80 A, p. 108 ; Mikolenko c. Estonie (déc.), no 16944/03, 5 janvier 2006 ; Malsagova et autres c. Russie (déc), no 27244/03, 6 mars 2008 ; Zagaria c. Italie (déc), no 24408/03, 3 juin 2008 ; De Pace c. Italie, no 22728/03, §§ 25-27, 17 juillet 2008 ; Pauger c. Autriche, no 24872/94, décision de la Commission du 9 janvier 1995, DR 80-A, p. 170 ; SDDDA c. Commission, affaire T-47/96 [1996] ECR II-1559, § 42 ; Cour de justice, Brasserie du pêcheur et Factortame, affaires jointes C-46/93 et C-48/93 (5 mars 1996 Keegan c. Irlande, arrêt du 26 mai 1994, série A no 290, p. 19, § 49 ; Neulinger et Shuruk c. Suisse [GC], no 41615/07, § 140, CEDH 2010 ; Ignaccolo-Zenide c. Roumanie, no 31679/96, § 94, CEDH 2000-I ; Nuutinen c. Finlande, no 32842/96, § 127, CEDH 2000-VIII; Streletz, Kessler et Krenz c. Allemagne [GC], nos 34044/96, 35532/97 et 44801/98, § 90, CEDH 2001-II ; Al-Adsani c. Royaume-Uni [GC], no 35763/97, § 55, CEDH 2001-XI; Artico c. Italie, arrêt du 13 mai 1980, série A no 37, p. 16, § 33 ; W. c. Royaume-Uni, arrêt du 8 juillet 1987, série A no 121, p. 29, § 65 ; McMichael c. Royaume-Uni, arrêt du 24 février 1995, série A no 307-B, pp. 55 et 57, §§ 87 et 92 ; Pini et autres c. Roumanie, nos 78028/01 et 78030/01, § 175, CEDH 2004-V (extraits) ; Hokkanen c. Finlande, arrêt du 23 septembre 1994, série A no 299-A, p. 22, § 58 ; Waite et Kennedy c. Allemagne [GC], no 26083/94, § 54, CEDH 1999-I ; Korbely c. Hongrie [GC], no 9174/02, § 72, CEDH 2008 ; Kutzner c. Allemagne, no 46544/99, § 79, CEDH 2002-I ; Willekens c. Belgique, no 50859/99, § 27, 24 avril 2003.

INCADAT comment

Inter-Relationship with International / Regional Instruments and National Law

European Convention of Human Rights (ECHR)
European Court of Human Rights (ECrtHR) Judgments

Implementation & Application Issues

Procedural Matters
Requirement of Expedition (art. 11)

SUMMARY

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Facts

The case concerned a child born in Germany in 2001. Shortly after she was born, the father, a Portuguese national, was sentenced to a jail term before being deported in 2004. The parents had separated during the father's imprisonment, but in January 2005, the mother travelled to Portugal to collect the child, who had visited the father.

She returned to Germany alone in late February and made a return application in March 2005, on the basis of the 1980 Hague Child Abduction Convention of 1980. Proceedings were initiated in Portugal in that same month with respect to parental responsibility. The mother's application was dismissed in January 2006. Her appeal was allowed in June 2006 and the father's appeal was dismissed in November 2006.

In August 2007, pursuant to a warrant issued by the Portuguese Court, the mother testified in Germany. By a judgment dated 21 May 2008, that Court once again dismissed the mother's return application on the grounds that the child's retention was not wrongful. The mother immediately entered an appeal, which was dismissed in January 2009, as the Court of Appeal considered the retention to be wrongful but that return would expose the child to a grave risk.

At the time of the ruling by the European Court of Human Rights (ECrtHR), the custody proceedings were still pending in Portugal. The mother, on the basis of Articles 6, 8 and 13 of the European Human Rights Convention (ECHR), entered an application against Portugal before the ECrtHR on the grounds of infringement of her right to respect for family life and her right to a court ruling within a reasonable time.

Ruling

The ECrtHR held unanimously that Portugal had breached Article 8 of the ECHR but did not award damages to the mother because she had not made her application for just satisfaction within the time allowed to her.

Grounds

European Convention on Human Rights (ECHR)


Portugal asserted that the interference was justified on the basis of the child's best interests, as enshrined in Regulation Brussels IIa (Regulation EC No 2201/2003 of the Council of 27 November 2003). The ECrtHR pointed out that while Article 8 "is designed mainly to protect individuals against improper interference by public agencies, it also creates affirmative obligations", in particular "a parent's entitlement to suitable measures to reunite him or her with the child and the obligation for the domestic authorities to take them".

It added, however, that "the obligation for domestic authorities to take measures for such purpose is not absolute, because reuniting one parent with his or her children having lived for some time with the other parent may not be possible immediately and require preparations. Their nature and extent depend on the circumstances of each case, but the understanding and cooperation of all parties involved are always an important factor.

While the domestic authorities should strive to facilitate such collaboration, an obligation on them to have recourse to coercion in such matters can only be limited: they must take into account the interests and rights and freedoms of those parties, and in particular the best interests of the child and the rights conferred on him or her by Article 8.

In the event that contacts with the parents are liable to threaten those interests or to infringe those rights, it is incumbent upon the domestic authorities to ensure that they are fairly balanced". Finally, it pointed out that the ECHR applies in agreement with the principles of international law and stressed that the affirmative obligations with respect to reuniting a parent and child are to be interpreted in the light of the Hague Convention and that genuine respect for family life required "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".

Pointing out that the adequacy of a measure was to be appraised by the expeditiousness of its implementation, it considered whether the Portuguese authorities had taken all the measures that could reasonably be expected of them. It stressed that it had no jurisdiction to determine whether the removal was wrongful, and noted that its role was limited to considering whether the relevant rules were applicable, and whether their interpretation was consistent with the ECHR.

It stated that the Court of Appeal, on 9 January 2009, had held the child's retention to be wrongful but consistent with Article 13(1)(b) of the Hague Convention. It observed that after the mother had brought return proceedings in 2005, the lower Court had taken almost 3 months to rule on the application, whereas both Article 11 of the Hague Convention and Article 11(3) of the Brussels IIa Regulation allow no more than 6 weeks after the commencement of proceedings.

That same Court delivered its second judgment more than 8 months after receipt of the mother's deposition from Germany, so that the return proceedings had lasted 3 years and 10 months for two tiers of court proceedings. It had to be observed, in the Court's view, that "the duration of those proceedings created an unfavourable factual situation" for the mother since the child was aged under four at the time of the retention.

And the Court of Appeal had eventually based its decision on the time elapsed. It deduced that the Portuguese courts had "not exercised effective means to process expeditiously the two proceedings concerned". The mother's right had accordingly not "been protected effectively as required by the Convention".

Author of the summary: Aude Fiorini

INCADAT comment

European Court of Human Rights (ECrtHR) Judgments

Requirement of Expedition (art. 11)

Preparation of INCADAT commentary in progress.