Tribunal Europeo de Derechos Humanos (TEDH)
14 May 2020
Convenio Europeo de Derechos Humanos (CEDH)
TEDH - Violación del Artículo 8 CEDH, concesión de indemnización por daños y perjuicios
The parents married in Germany and had a daughter in 2005. The father is a German citizen and the mother a Lithuanian citizen. The parents had joint parental responsibility of the child. The mother also had an older son from a previous marriage.
In 2005 the parents began living separately. The child remained with her mother but maintained frequent contact with her father. At a later stage, divorce proceedings were initiated by the father and the child was issued with a German passport.
On 21 July 2006 the father agreed the mother should take their daughter to Lithuania for two weeks’ holiday, on condition that she return to Germany by 6 August 2006. When the child and mother did not return to Germany, the first applicant started court proceedings in Germany. An arrest warrant in respect of the mother was issued by the German authorities and the Oranienburg District Court terminated the mother’s joint custody of their daughter and awarded provisional custody to the father until divorce proceedings were completed. The mother’s appeal was dismissed by the Brandenburg Regional Court (Oberlandesgericht).
On 30 October 2006 the first applicant asked the Klaipėda Regional Court in Lithuania for a permit allowing him to take his daughter back to Germany. He relied on the 1980 Hague Convention and also on the Brussels II bis Regulation (Council Regulation (EC) No. 2201/2003). The Klaipėda Regional Court refused the father’s request, holding that the child had a strong bond with her mother and brother and her return to Germany ‒ where her mother might be arrested, even if only temporarily ‒ could cause the child serious psychological harm under Article 13(1)(b) of the Convention.
This decision was overturned by the Court of Appeal which ordered the return of the child to Germany. In April 2008 the Supreme Court suspended proceedings and requested a preliminary ruling from the ECJ. The ECJ gave a preliminary ruling within 9 weeks holding that the Lithuanian court should allow the immediate return of the child. After a further six weeks the Supreme Court of Lithuania ordered the return of the child.
The story was widely reported in the media which led to public, institutional and political pressure.
There had been a violation of Article 8 of the ECHR in respect of both the father and the child.
The court held that delays in the procedure alone may enable the Court to conclude that the authorities did not comply with their positive obligations under the Convention.
In the present case the time it took for the Lithuanian courts to reach the final decision in the applicants’ case failed to respond to the urgency of their situation. Whilst the initial decision-making of the applicant’s case by the domestic courts met the requirements of Article 8 of the Convention, the later conduct of the Lithuanian authorities, including political interference into what was a pending court case, as well as the manner in which the case was subsequently handled by the domestic courts and other authorities, fell short of what was required from the State under that provision.