HC/E/SK 1308
Tribunal Europeo de Derechos Humanos (TEDH)
Noruega
Eslovaquia
13 January 2015
Definitiva
Convenio Europeo de Derechos Humanos (CEDH) |
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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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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].
Preparation of INCADAT commentary in progress.