CASO

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Nombre del caso

III. ÚS 440/2000 DAOUD / DAOUD

Referencia INCADAT

HC/E/CZ 468

Tribunal

País

República Checa

Nombre

Ústavní soud Èeské republiky (Constitutional Court of the Czech Republic) (República Checa)

Instancia

última instancia

Estados involucrados

Estado requirente

Israel

Estado requerido

República Checa

Fallo

Fecha

7 December 2000

Estado

Otra

Fundamentos

Objeciones del niño a la restitución - art. 13(2) | Derechos humanos - art. 20

Fallo

-

Artículo(s) del Convenio considerados

13(1)(a) 13(1)(b)

Artículo(s) del Convenio invocados en la decisión

13(1)(a) 13(1)(b)

Otras disposiciones

-

Jurisprudencia | Casos referidos

-

INCADAT comentario

Excepciones a la restitución

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

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

SUMARIO

Sumario disponible en EN | FR | ES

Facts

The child, a girl, was 8 at the date of the alleged wrongful retention. She had lived in Israel for the majority of her life. Her parents were married and had joint rights of custody. The father had Israeli nationality while the mother was Czech. In 1999 the mother went to the Czech Republic, her State of origin, with the child and did not return.

The father then petitioned for a return order under the Convention. On 10 December 1999 the District court Rychnov nad Knìžnou ordered the return of the child. The mother appealed. On 10 May 2000 the first instance order was confirmed by the Hradec Králové (Court of Appeal) Hradec Králové.

Then the mother then petitioned the Constitutional Court of the Czech Republic. She complained that the lower courts had not taken into consideration all the evidence she had presented. First she presented letters written by the father. She further presented a report made by a child psychologist which stated that the child was able to formulate her own opinions.

A second constitutional appeal was filed by the local Social Authority which had been appointed to represent the child's interests. This was not allowed to proceed because of the appeal filed by the mother.

Nevertheless the Social Authority submitted a further report by a child-psychologist which confirmed that the child's level of maturity was above-average and she was able to express unambiguously her needs. It was further noted that if the child's views were not respected this would cause her serious psychical trauma.

Ruling

Appeal upheld, the removal was wrongful, but the additional evidence should have been taken into account. The case was remitted to the District Court Rychnov nad Knìžnou to rule on the father's application anew. The Constitutional Court further ruled that the Convention did not violate the abducting parent's rights under the Czech Constitution.

Grounds

Objections of the Child to a Return - Art. 13(2)

The Constitutional Court noted that neither the court at first instance, nor the court of appeal had taken into consideration the evidence presented by the mother. Moreover, there was now new evidence, namely the expert report presented by the Social Authority. The Court ruled that more evidence should have been presented to address whether or not a return could place the child at a grave risk of harm and whether or not the child was mature enough to voice her views and wishes.

Human Rights - Art. 20

The mother argued that a return order would conflict with Article 32 of the Czech Charter on principal rights and freedoms (part of the Czech Constitution) which provides that parents have the right to care for their children and children have the right to be cared for by their parents. As result of the return order she would be forced, against her will, to leave her home country together with the child and to live abroad. However, the Court did not find these allegations proved, ruling that the main target of Article 32 was to protect best interests of children not of parents.

INCADAT comment

Protection of Human rights & Fundamental Freedoms

Preparation of INCADAT commentary in progress.

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].