HC/E/CR 1589
COSTA RICA
Sala Constitucional de la Corte Suprema de Justicia
Superior Appellate Court
Fernando Castilo; Pablo Rueda L.; Nancy Hernández L.; Luis Fdo. Salazar A.; Anamari Garro V.; Ana María Picado B.; y Ileana Sánchez N.
URUGUAY
COSTA RICA
11 May 2021
Final
Issues Relating to Return
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Art. 32 of the Political Constitution of Costa Rica; Art. 3 of the Convention on the Rights of the Child
Decision Nº 2000-009685 of the Constitutional Division
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Wrongful retention of a boy – Uruguayuan and Costa Rican – Divorced parents – The child lived in Uruguay until 6 february 2020 – The return request was made before the Costa Rican Central Authority - Habeas corpus disallowed – Main Issues: Non-Convention Issues - the safeguard in Art. 32 of the Constitution is not unlimited, it must be examined in consideration of the HCCH Convention on Child Abduction and the best interests of the child.
The case concerns a 4-year-old boy born in Uruguay and holder of a dual citizenship, Costa Rican and Uruguayan. The boy lived in Uruguay with his Costa Rican mother and Uruguayan father, who were married. In 2019, the mother initiated a domestic violence case in Uruguay. Measures were taken against the father, such as a restraining order keeping him away from the marital home. In addition, the father initiated divorce proceedings in Uruguay.
In February 2020, the mother travelled with the child to Costa Rica when the father was in Antarctica for work. The child had a valid passport and a broad authorisation to exit the country with either parent.
In June 2020, the father requested the child’s return to the Uruguayan Central Authority. The request was referred to the Costa Rican counterpart, which initiated the case before court. The first instance court dismissed the complaint considering that the child had settled into the new environment and the grave risk exception given the gender violence suffered by the mother.
The Court of Appeals overturned the decision on appeal and the child’s return to Uruguay was ordered. The Court found that the settlement exception was not applicable because the father had requested the child’s return within a year since the wrongful event. Moreover, it held that the grave risk exception was not applicable either because Uruguay had given protection and security to the boy and his mother upon her reporting the gender violence to the police.
The mother filed an habeas corpus before the Supreme Court of Costa Rica, asking for relief under Art. 32 if the Political Constitution for her and the child.
The habeas corpus was dismissed. Art. 32 of the Political Constitution of Costa Rica does not preempt the return of Costa Rican children.
Art. 32 of the Political Constitution of Costa Rica provides that no Costa Rican person may be compelled to leave that country’s territory. The Constitutional Division referred to the historical background of this provision, the purpose of which was to prevent Costa Rican people from being sanctioned by expulsion from the national territory upon commission of a crime.
In addition, the Division held that Art. 32 safeguard is not unlimited, it has to be read in relation to other instruments and notions of the international law of human rights; amongst them, the HCCH Convention on Child Abduction and the notion of best interests of the child. In that sense, the Division noted that Costa Rica had made no reservations to the Convention to prevent its application to Costa Rican children. Also, the analysis whether return should be ordered or not must not be limited to the child’s nationality, it has to be considered together with a bundle of different other factors.
On the other hand, the Division held that the Supreme Court is not one more instance in return proceedings and it should not review the competent jurisdictional authority’s decision because it is outside its purview. In that regard, the Division found that it was not its job to take over the jurisdictional authorities in the assessment of the evidence.
Author: Sofia Ansalone (INCADAT LATAM team, Director Nieve Rubaja, Assistant Emilia Gortari Wirz).