CASO

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Nombre del caso

Hoholm v. Slovakia (Application No 35632/13)

Referencia INCADAT

HC/E/SK 1308

Tribunal

Instancia

Tribunal Europeo de Derechos Humanos (TEDH)

Estados involucrados

Estado requirente

Noruega

Estado requerido

Eslovaquia

Fallo

Fecha

13 January 2015

Estado

Definitiva

Fundamentos

Convenio Europeo de Derechos Humanos (CEDH) |

Fallo

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Artículo(s) del Convenio considerados

1 2 11

Artículo(s) del Convenio invocados en la decisión

1 2 11

Otras disposiciones

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Jurisprudencia | Casos referidos

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INCADAT comentario

Interrelación con instrumentos internacionales y regionales y Derecho interno

Compatibilidad del Convenio de La Haya con constituciones nacionales
Compatibilidad del Convenio de La Haya con las Constituciones Nacionales
Convenio Europeo de Derechos Humanos (CEDH)
Fallos del Tribunal Europeo de Derechos Humanos (TEDH)

Excepciones a la restitución

Protección de derechos humanos y libertades fundamentales
Protección de los derechos humanos y las libertades fundamentales

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The case concerned two children born in 2000 and 2002 to a Norwegian father and a Slovak mother, who had married in Norway in 2000.

The family lived together in Norway until the father left the family home in May 2004. On 18 August 2004, an administrative decision was taken on the couple's separation. 

On 7 September 2004, the Vesterålen District Court (tingrett) in Norway issued an interim order stating that the parents have joint responsibility for the children and that the children would remain in the care of the mother with visiting rights for the father. The District Court prohibited the parents from taking the children out of the Norwegian territory without the consent of the other parent.

On 8 July 2005, the mother took the children to Slovakia.

On 21 September 2005, the Vesterålen District Court awarded exclusive parental responsibility to the father. The award placed the children under his care, with visiting rights for the mother. An order was issued, forbidding her from removing the children out of the Norwegian territory.

On 14 December 2005, the father initiated proceedings under the 1980 Hague Child Abduction Convention in Slovakia, seeking a return order for the children.

On 23 May 2006, the Liptovský Mikuláš District Court (Okresný súd) in Slovakia dismissed the father's action for return. The father's appeal against this decision was dismissed by the Žilina Regional Court (Krajský súd) on 28 February 2007.

The father then petitioned the Prosecutor General for an extraordinary appeal on points of law (mimoriadne dovolanie) but was informed in October 2007 that this type of extraordinary appeal was not available in family law matters.

On 30 May 2007, the father submitted a complaint to the Constitutional Court (Ustavný súd) alleging a violation of his fundamental rights. On 12 June 2008, the Constitutional Court found a violation of Article 6(1) of the European Convention on Human Rights (ECHR). It overturned the decision of 28 February 2007 and remitted the matter to the Regional Court for re-examination.

On 7 October 2008, the Regional Court re-examined the decision, overturned it and remitted the case to the District Court for re-examination.

On 16 April 2009, the District Court issued an order for the return of the children which was upheld on appeal by the Regional Court on 23 June 2009. On 13 August 2009, the order became final and binding and the father petitioned for enforcement.

The mother filed an appeal on points of law (dovolanie) and on 7 September 2010, the return order was overturned by the Supreme Court (Najvyšší súd). The case was remitted to the District Court and the enforcement proceedings were discontinued on 30 September 2010.

A new return order was then issued on 22 October 2010 by the District Court and upheld by the Regional Court on 25 January 2011. On 24 February 2011, the father petitioned for enforcement of the order which had become final and binding.

The Prosecutor General lodged an extraordinary appeal on points of law on behalf of the mother and on 27 July 2011, the Supreme Court quashed the return order. It noted that the courts, being bound to examine carefully the overall situation to which the children would return in the place of their habitual residence, had based their decision on reports of February and April 2009 which the Supreme Court judged outdated in the circumstances. The matter was remitted to the District Court for a new examination and the enforcement proceedings were terminated.

The father's action for return was rejected by the District Court on 21 November 2011 and dismissed on appeal by the Regional Court on 6 November 2012. Both courts relied on the Supreme Courts' judgment of 27 July 2011 and noted that the children wanted to stay with their mother in Slovakia where they had spent more than half of their lives and were integrated.

In the meantime, on 3 September 2012, the father had lodged a complaint to the Constitutional Court against the District Court, the Regional Court and Supreme Court, alleging a violation of his rights under Articles 6 and 8 of the ECHR and their constitutional equivalents. He submitted that the court procedure had lasted an excessively long time (nearly seven years) which had worked against him in his return application. He also challenged the decision of the Supreme Court of 27 July 2011 because the Prosecutor General had lodged an extraordinary appeal on points of law on behalf of the mother, whereas that same remedy had been refused to him on the basis that it was not available in family law matters.

On 30 October 2012, the Constitutional Court declared the father's complaint inadmissible. It based its decision on, inter alia, the fact that the Supreme Court and District Court were no longer dealing with the case at the time the complaint had been introduced. The examination of the length of these proceedings could not accelerate the proceedings anymore, therefore, the father lacked the standing to have them examined.

On 13 May 2013, the father lodged a complaint to the European Court of Human Rights (ECrtHR) against the Slovak Republic.

Ruling

The ECrtHR held unanimously that the Slovak Republic had breached Article 6(1) of the ECHR taken alone and in conjunction with Article 13, due to the excessive length of the proceedings and the lack of an effective remedy.

Grounds

European Convention on Human Rights (ECHR)


Article 6(1):
The father submitted that there had been a violation of his rights under Article 6(1) of the ECHR due to the excessive length of the proceedings in his Hague Convention petition.

The Slovak government submitted however that the subject matter of the proceedings had called for careful examination, that the availability of ordinary and extraordinary remedies was not in itself contrary to the Convention requirements, and that the course and length of the return proceedings had reflected the particular circumstances of the present case.

The Norwegian government submitted that the length of proceedings appeared to be a systemic problem in Slovakia, which might be a consequence of the legal remedies available to the parties in such cases. The Slovak government for its part denied the existence of any systemic problem.

The Court stressed that "the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute […]". It added that "special diligence [was] required in view of the possible consequences which excessively lengthy proceedings may have, especially, on the enjoyment of the right to respect for family life […]".

The Court noted that the Hague Convention proceedings lasted for seven years and found that the case did not present a particular complexity which could justify the lengthy duration of the proceedings. Referring to López Guió v. Slovakia (Application No 10280/12) [INCADAT Reference: HC/E/ 1272], the Court stated that, although return proceedings require adequate scrutiny in compliance with the standards of the ECHR, the scope for such proceedings was limited to an examination on whether there had been a wrongful removal or retention of a child and whether there were any obstacles to the child's return to its State of habitual residence. The Court noted that any other substantive questions such as those related to parental rights should be determined by the courts in the State of habitual residence.

Examining the conduct of the authorities in the case, the Court observed that the availability of appeals and extraordinary appeals negated the object and purpose of the Hague Convention. It also noted that an extraordinary remedy had been applied on behalf of the mother, but refused to the father as unavailable as a matter of law.

The Court emphasised the "critical importance attached to the passing of time" in Hague Convention cases which often constituted an influential factor in the final decision on the merits and agreed with the argument advanced by the Norwegian Government that the proceedings "appear[ed] to have created a downward spiral, since the delay with which the evidence [had been] examined resulted in the need for the re-taking of the same evidence which, in view of all the circumstances, bordered on a denial of justice".

In view of these considerations, the Court held that the length of the proceedings was excessive and had failed to meet the requirement of "reasonable time" set out under Article 6(1) of the ECHR.

Article 6(1) in conjunction with Article 13:
The Court turned to Article 13 of the ECHR which "guarantee[d] an effective remedy before a national authority for an alleged breach of the requirement under Article 6(1) to hear a case within a reasonable time […]".

It noted that the Constitutional Court, when declaring the complaint of the father for violation of his rights under Articles 6 and 8 of the ECHR inadmissible, had failed to examine the overall length of the proceedings. The Court found that the applicant did not have the benefit of an "effective remedy" in the terms of its case law and concluded that there was a violation of Article 6(1) in conjunction with Article 13.

Article 6(1) in conjunction with Article 8:
The father submitted further complaints related to Articles 6(1) and 8 of the ECHR which the Court rejected for non-exhaustion of domestic remedies.

Authors of the summary: Permanent Bureau in cooperation with Peter McEleavy

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INCADAT comment

Compatibility of the Hague Convention with National Constitutions

The Convention has been found to be in accordance with national constitutions or charters of rights in other Contracting States, see:

Argentina
W. v. O., 14 June 1995, Argentine Supreme Court of Justice, [INCADAT cite: HC/E/AR 362];  

Belgium
N° 03/3585/A, Tribunal de première instance de Bruxelles, [INCADAT cite: HC/E/BE 547];  

Canada - Canadian Charter of Rights and Freedoms
Parsons v. Styger, (1989) 67 OR (2d) 1, [INCADAT cite: HC/E/CA 16];

Y.D. v. J.B., [1996] R.D.F. 753 (Que.C.A.), [INCADAT cite: HC/E/CA/369];

Czech Republic
III. ÚS 440/2000 DAOUD / DAOUD, 7 December 2000, Ústavní soud České republiky (Constitutional Court of the Czech Republic);[INCADAT cite: HC/E/CZ 468];

Germany
2 BvR 982/95 and 2 BvR 983/95, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 310];

2 BvR 1126/97, Bundesverfassungsgericht, [INCADAT cite: HC/E/DE 338];

Ireland
C.K. v. C.K. [1993] ILRM 534, [INCADAT cite: HC/E/IE 288];

W. v. Ireland and the Attorney General and M.W. [1994] ILRM 126, [INCADAT cite: HC/E/IE 289];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Switzerland
5P.1/1999, Bundesgericht (Tribunal fédéral), [INCADAT cite: HC/E/CH 427];

5A_479/2007 /frs, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 953];

United States of America
Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859 (2001) [INCADAT cite: HC/E/US 484];

Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) [INCADAT cite: HC/E/US 971];

Rodriguez v. Nat'l Ctr. for Missing & Exploited Children, 2005 U.S. Dist. LEXIS 5658 (D.D.C., Mar. 31, 2005) [INCADAT cite: HC/E/US 799].

However, several challenges have been upheld in Spain, see:

Re S., Auto de 21 abril de 1997, Audiencia Provincial Barcelona, Sección 1a, [INCADAT cite: HC/E/ES 244];

Carrascosa v. McGuire, 520 F.3d 249 (3rd Cir. 2008), [INCADAT cite: HC/E/USf 970].

European Court of Human Rights (ECrtHR) Judgments

Protection of Human rights & Fundamental Freedoms

Preparation of INCADAT commentary in progress.