THIRD SECTION

DECISION

Application no . 1349/12 L.G.R. and A.P.R. against Slovakia

The European Court of Human Rights ( Third Section ), sitting on 13 May 2014 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Dragoljub Popović , Luis López Guerra , Johannes Silvis , Valeriu Griţco , judges , and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 6 January 2012 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant is a British national, who was born in 2006 and is presently residing in Bratislava (Slovakia). The application has been submitted on the first applicant ’ s behalf by the first applicants ’ father, the second applicant, who has parental responsibility for the first applicant as a matter of English law.

The second applicant is a British national. He was born in 1965 and li ves in Newton St. Cyres (the United Kingdom ).

2. The President granted the applicants ’ request for their identit ies not to be disclosed to the public (Rule 47 § 3).

3. The applicants were represented before the Court by the Aire Centre in London . The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Piro šíková .

4. On 20 April 2012 the Government of the United Kingdom were informed of the case and invited to exercise their right of intervention (Ar ticle 36 § 1 of the Convention and Rule 44 of the Rules of Court) , to which invitation they have not responded .

A. The circumstances of the case

5. The facts of the case, as submitted by the parties, may be summarised as follows.

1. B ackground

6. In 2006, prior to the first applicant ’ s birth, the second applicant married the first applicant ’ s mother, a Slovak national. The family lived in England.

7. On 24 July 2007 the mother informed the second applicant that she and the first applicant would not be returning to the United Kingdom from holiday in Croatia and that she intended to take the first applicant to Slovakia and to settle there permanently.

8. On 13 August 2007 the mother and the first applicant, who was then less than a year old, travelled to Slovakia and have not returned to the United Kingdom since.

9. On 10 November 200 8 an English court granted the couple a divorce , which was finalised on 6 January 2009.

2. Hague Convention proceedings

10. Meanwhile, o n 7 November 2007 , the second applicant had commenced proceedings in the Slovakian courts for the return of the first applicant to England and Wales under the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

11. On 14 December 2007 and 31 March 2008, respectively, the Bratislava II District Court ( Okresný súd ) and, following the mother ’ s appeal ( odvolanie ), the Bratislava Regional Court ( Krajský súd ) ordered the return of the first applicant to England and Wales as the country of the child ’ s habitual residence. The courts emphasised that the order did not imply that the first applicant should reside with either parent , but merely required that the status quo ante be restored so that questions of residence and contact might be determined by the English courts , which had jurisdiction over them.

The return order became enforceable on 9 June 2008.

3. Extraordinary appeal on points of law

12. On 22 December 2008 the Prosecutor General acceded to a petition by the mother and exercised his discretionary power to challenge the return order by way of an extraordinary appeal on points of law ( mimoriadne dovolanie ). It was argued that the courts had failed properly to establish whether the first applicant had been wrongfully removed or retained and whether there were grounds for not ordering the first applicant ’ s return under Article 13 of the Hague Convention.

At the same time, the Prosecutor General suspended the enforceability of the return order.

13. On 4 February 2009, in response to an enquiry made on the second applicant ’ s behalf, the President of the District Court provided the office of the President of Slovakia with an update on the state of the proceedings. She added the following comment:

“It does not behove me to judge the actions of the Office of the Prosecutor General. I am not privy to the reasons why an extraordinary appeal on points of law was lodged. I detect a problem in the system, which allows for such a procedure even in respect of decisions on the return of minor children abroad ( ‘ international child abductions ’ ). Irrespective of the outcome of the specific case, the possibility of lodging an appeal on points of law and an extraordinary appeal on points of law in cases of international child abduction protracts the proceedings and negates the object of the [Hague Convention], which is as expeditious a restoration of the original state [of affairs] as possible, that is to say the return of the child to the country of the child ’ s habitual residence within the shortest possible time.”

14. On 30 June 2009 the Supreme Court ( Najvyšší súd ) ruled on the extraordinary appeal by quash ing the return order and remitt ing the matter to the first-instance court for re-examination.

4. Hague Convention proceedings after the first remittal

15. On 29 March 2010 the District Court dismissed the second applicant ’ s application for the return of the first applicant. Relying on Article 13 of the Hague Convention, i t observed that the first applicant had been living in Slovakia for two - and - a - half years and had developed a settled home life there. The return of the first applicant was thus “not in the interest s of the child and the child ’ s healthy mental development”.

16. On 25 August 2010 the Regional Court quashed the decision of 29 March 2010 following the second applicant ’ s appeal and remitted the case to the first-instance court , finding that the latter had failed to provide adequate reasons for its decision.

17. On 8 November 2010 and, respectively, 15 March 2011, the District Court and, following the mother ’ s appeal, the Regional Court again ordered the return of the first applicant to England and Wales. The courts found that the second applicant had shown that appropriate measures had been taken to secure the first applicant ’ s rights and interests after his return and that the mother had failed to show that the return of the first applicant was contrary to the Hague Convention.

5. Appeal on points of law and other remedies

18. On 11 April 2011 the mother lodged an appeal on points of law ( dovolanie ) and subsequently sought to have the enforcement of the return order suspended.

19. On 22 June and 4 November 2011, respectively, the District Court summoned the mother and interviewed her and the second applicant with a view to having the return order complied with, to no avail.

20. Following the interview of 4 November 2011, on the same day, the District Court dismissed the mother ’ s motion for the enforcement proceedings to be suspended. Upon her appeal, that decision was quashed. Subsequently, the enforcement proceedings were terminated in view of the Supreme Court ’ s decision on the mother ’ s appeal on points of law (see paragraph 22 below). The second applicant appealed against that decision and the proceedings are still pending.

21. Meanwhile, o n 15 November 2011, t he Prosecutor General informed t he mother, in response to a petition filed by her, that he had no intention of challenging the new return order by an extraordinary appeal on points of law.

22. However, o n 12 December 2011, following the mother ’ s appeal on points of law, the Supreme Court quashed the Regional Court ’ s decision of 15 March 2011 to dismiss her appeal against the new return order and remitted the appeal to the Regional Court for re-examination. It held that the latter had failed to provide adequate reasons for dismissing the mother ’ s arguments under Article 13 of the Hague Convention.

6. Hague Convention proceedings after the second remittal

23. Following the Supreme Court ’ s judgment of 12 December 2011, the case was remitted to the first-instance court. The proceedings are still pending.

7 . Proceedings in the English courts

24. Meanwhile, on 24 July 2008 and 3 February and 1 October 2009 , the High Court of Justice of England and Wales issued three orders to the mother to return the first applicant to the jurisdiction of England and Wales. At the same time, it issued certificates pursuant to Article 41 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Regulation No. 2201/2003”) providing the second applicant with contact rights in respect of the first applicant in Slovakia.

8 . Contact between the applicants

25. Since the first applicant was taken to Slovakia, the applicants have had intermittent contact.

26. On 17 July and 24 August 2009, respectively, the District Court and, following the mother ’ s appeal, the Regional Court ordered the mother to facilitate contact between the applicants.

27. According to the Government, the mother has not been hindering contact between the applicants. However, in the applicants ’ submission, the mother has often obstructed the second applicant ’ s visits from the first applicant and he continues to experienc e difficulties seeing the first applicant.

9. Position of the first applicant ’ s mother as regards the first applicant ’ s application to the Court

28. In their observations in reply to the present application, the Government submitted a copy of an undated letter from the mother of the first applicant to the Government in which she declared that both she and the second applicant had equal parental rights and responsibilities in respect of the first applicant and that she therefore disagreed with the first applicant ’ s introducing an application under Article 34 of the Convention. She considered that such a course of action exclusively benefited the interests of the second applicant and was in fact contrary to the interests of the first applicant.

B. Relevant domestic , European and international law

1. Relevant European and international law

29. The relevant provisions of the Hague Convention, the United Nations Convention on the Rights of the Child, the Charter of Fundamental Rights of the European Union and the Regulation No. 2201/2003 have recently been summarised in the Court ’ s judgment in the case of X v. Latvia ([GC], no. 27853/09, §§ 34-42, ECHR 2013).

2. Re levant domestic law

(a) Constitution (Constitutional Law no. 460/1992 Coll., as amended)

30. Article 127 was re-codified by Constitutional Law no. 90/2001 Coll., with effect from 1 January 2001. It r eads as follows:

“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

2. If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person ’ s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person ’ s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person ’ s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.

3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.

4. The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court ’ s decision.”

(b) The U.N. Convention on the Rights of the Child and the Hague Convention in Slovakia

31. The U.N. Convention on the Rights of the Child entered into force in respect of Slovakia on 6 February 1991 (Notice of the Ministry of Foreign Affairs no. 104/1991 Coll.), while the Hague Convention did so on 1 February 2001 (Notice of the Ministry of Foreign Affairs no. 119/2001 Coll.).

(c) Code of Civil Procedure (Law no. 99/1963 Coll., as amended)

32. The relevant provisions concerning appeals on points of law are summarised , for example , in the Court ’ s decision in Ringier Axel Springer Slovakia v. Slovakia (no. 35090/07, §§ 65-8, 4 October 2011, with further references). Appeals on points of law have no automatic suspensive effect, the power to suspend the enforceability of the impugned decision being entrusted to the Supreme Court (Article 243).

33. Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq.

34. The Prosecutor General has the power to challenge a decision of a court by means of an extraordinary appeal. He or she may do so upon a petition of a party to the proceedings or another person concerned or injured by the decision, provided that the Prosecutor General concludes that : the final and binding decision has violated the law; the protection of the rights and legitimate interests of individuals, legal entities, or the State requires that such an appeal be brought ; such protection cannot be achieved by other means; and the matter at hand is not excluded from judicial review (Articles 243e § 1 and 243f § 2).

35. An extraordinary appeal may only be aimed at a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision (Article 243e § 2). Unless a statute provides otherwise, the Prosecutor General is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4).

36. Further conditions of admissibility of an extraordinary appeal are listed in Article 243f § 1. They comprise (a) major procedural flaws within the meaning of Article 237 (in that respect see, for example, Ringier Axel Springer Slovakia, v. Slovakia , no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) wrongful assessment of points of law.

37. An extraordinary appeal is to be lodged with the Supreme C ourt within one year of the contested judicial decision ’ s becoming final and binding (Article 243g).

38. If the Prosecutor General concludes, upon a petition of a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic loss or other serious irreparable consequence s , the extraordinary appeal may be filed without reasons for appeal being stated . The reasons then must be s tat ed within sixty days of the lodging of the extraordinary appeal with the Supreme C ourt, failing which the proceedings are to be discontinued (Article 243h §§ 3 and 4).

39. If the extraordinary appeal on points of law is accompanied by a request that that the enforceability of the contested decision be suspended, its enforceability is to be suspended upon the extraordinary appeal being lodged with the Supreme C ourt (Article 243ha § 1).

The duration of such a suspension is regulated by Article 243ha § 2, pursuant to which that suspension ceases (a) when the request is dismissed or (b) with the decision on the extraordinary appeal, unless extended by the Supreme C ourt no later than one year from the lodging of the extraordinary appeal with it .

COMPLAINTS

40. The applicants complained under Article 6 § 1 of the Convention that the Slovakian authorities (i) ha d failed to carry out the Hague Convention proceedings expeditiously, (ii) ha d failed to enforce the order for the first applicant ’ s return, and (iii) ha d thereby deprived them of the possibility of having matters concerning residence and contact in respect of the first applicant determined by the courts of England and Wales, which were the only courts with jurisdiction over such matters.

41. The applicants also complain ed under Article 8 of the Convention that the failure to ensure the return of the first applicant to the country of the first applicant ’ s habitual residence had constituted a violation of their right to respect for family life .

THE LAW

1. L ocus standi in respect of the first applicant

42 . Referring to the letter by the mother of the first applicant (see paragraph 28 above), the Government submitted that both the second applicant and the first applicant ’ s mother had equal parental rights and responsibilities in respect of the first applicant and that, as evidenced by her letter, the first applicant ’ s mother had not consented to the first applicant ’ s submitting an application to the Court. On that basis, the Government expressed doubt as to the second applicant ’ s entitlement to represent the first applicant before the Court.

43. Moreover, the Government considered it questionable whether in the specific circumstances of the present case it was in the best interests of the first applicant to seek a finding by the Court of a violation of the first applicant ’ s rights on account of the manner in which the domestic authorities had handled the second applicant ’ s Hague Convention application, because, in the Government ’ s submission, the reason behind the quashing of the order for the first applicant ’ s return was precisely the best interests of the first applicant.

44 . The applicants disagreed , referring to the Convention case-law on the subject.

45 . The Court notes that the present application was lodged by the second applicant both in his own name and in the name of the first applicant (see paragraph 1 above) and that the Government ’ s submission in substance amounts to a challenge to the first applicant ’ s standing before the Court in the context of the present application.

46. The Court is of the view that it is not called upon to deal separately with such an objection because the application is in any event inadmissible on another ground as specified below.

2. Exhaustion of domestic remedies

(a) Parties ’ arguments

47. The Government also objected that, as regards all of their complaints, the applicants had failed to respect the requirement of exhaustion of domestic remedies, in that they had not made complaints under Article 127 of the Constitution to the Constitutional Court. In the Government ’ s submission, the applicable law had been sufficiently foreseeable and any complaint concerning the interpretation or application of the law could and should have been made before the Constitutional Court.

48. In response, the second applicant disagreed and referred to his arguments in the application form, which he developed as follows.

49. He acknowledge d that in cases concerning Slovakia it wa s normally necessary to exhaust domestic remedies by seeking to bring a complaint before the Constitutional Court. However, he contended that he had not been required to lodge a constitutional complaint in the present case on two grounds.

Firstly, the second applicant pointed out that there had been instances in the past where applicants had in principle been successful in asserting their rights before the Constitutional Court and yet had preserved their "victim" status in respect of complaints about identical violations before the Court.

Secondly, the essence of the situation complained of was the existing leg islative framework in Slovakia for dealing with cases concerning the return of children under the Hague Convention , including (i) the discretion of the Prosecutor General to prolong the proceedings by challenging final and binding return orders by an extraordinary appeal on points of law for as long as one year from the date on which the order had become final and binding (see paragraph 37 above) and (ii) the possibility under Slovakian law of the same court conside ring the case multiple t imes.

In particular, in the present case, the Prosecutor General had intervened using the procedure described above, which had ultimately resulted in a protracted period of legal uncertainty – with the case so far having been examined three times at first instance, three times on appeal, and twice by the Supreme Court.

In sum, relying on the Court ’ s conclusions as regards the requirement to exhaust domestic remedies for the purposes of Article 35 § 1 of the Convention by lodging a complaint under Article 127 of the Constitution made in its judgment in the case of Babylonová v. Slovakia ( no. 69146/01, §§ 44 and 45 , ECHR 2006-VIII ), the second applicant considered that he had not been required to exhaust the said remedy in the present case.

(b) The Court ’ s assessment

50. The Court reiterates the general principles, concerning requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention, which are of relevance in this case, as formulated and summarised, for example, in its judgment in the case of Akdivar and Others v. Turkey (16 September 1996, §§ 65 - 69, Reports of Judgments and Decisions 1996 ‑ IV) .

52. The Court acknowledges that, as the applicants appear to suggest, there have been cases in which, when dealing with individual complaints under Article 127 of the Constitution, the Constitutional Court did not provide the complainants with a remedy (see, for example, Ištván and Ištvánová v. Slovakia , no. 30189/07 , §§ 18 et seq . , 12 June 2012 ; Koky and Others v. Slovakia , no. 13624/03 , §§ 112-3 , 12 June 2012 ; and Soltész v. Slovakia , no. 11867/09 , § 32 , 22 October 2013 ), or the remedy it provided them with was not sufficient to deprive them of their "victim" status within the meaning of Article 34 of the Convention for the purposes of their ensuing complaints to the Court (see, for example, Gajdoš v. Slovakia , no. 19304/04 , § 19 , 23 June 2009 ; Dvořáček and Dvořáčková v. Slovakia , no. 30754/04 , §§ 74-5 , 28 July 2009 ; and Winkler v. Slovakia , no. 25416/07 , § 32-3 , 17 July 2012 ).

54. Therefore, unless the applicants in the present case succeed in show ing that there were specific reasons for which they should be exempted from the obligation to exhaust the said remedy, Article 35 § 1 of the Convention precludes them from bringing their case before the Court.

However, the Court would point out that this position was taken because the respective complaints were directly concerned with the state of the law, coupled with the fact that – under its settled case-law – the Constitutional Court has no power, upon a complaint under Article 127 of the Constitution, to review the constitutionality of legislation (see , for example, Babylonová , cited above, §§ 44 and 45; Urbárska Obec Trenčianske Biskupice v. Slovakia , no. 74258/01, §§ 85-89, ECHR 2007 ‑ XIII (extracts) ; and Laduna v. Slovakia (dec.), no. 31827/02 , 20 October 2010 ).

56 . The Court considers that the present case has to be distinguished from those cited in the preceding paragraph in several respects.

First of all, the Court points out that its task is not to review the relevant domestic law and practice in abstracto , but rather to determine whether the manner in which they were applied to or affected the applicant (s) gave rise to a violation of the Convention or its Protocols ( see, Fruni v. Slovakia , no. 8014/07, § 133, 21 June 2011, with further references).

In so far as the applicants ’ specific situation is concerned, and in so far as the application has been substantiated, the Court has found no indication that they did not have the opportunity to address the Constitutional Court under Article 127 of the Constitution with any complaint concerning the length or the course of the Hague Convention proceedings or that such a complaint was bound to fail.

In particular, the Court observes that such a complaint could be directed against all of the authorities involved in dealing with the second applicant ’ s Hague Convention application, that it could be aimed at the proceedings in their entirety, that is to say including all judicial and non-judicial authorities involved in dealing with the second applicant ’ s Hague Convention application, and that – upon such a complaint being lodged – the Constitutional Court would have the power, in the event of a finding of a violation of the applicants ’ fundamental rights or freedoms, to quash any wrongful decision, to order the taking of the necessary action , to order that a violation of the given right or freedom be ceased, to order the restoration of the status quo ante , and/or to award damages (see paragraph 30 above).

57 . The Court would also point out that the Hague Convention proceedings in the present case are still pending and that, accordingly, the opportunity for the applicants to submit their Convention complaints to the Constitutional Court under Article 127 of the Constitution remains open, and is without prejudice to their ability to reapply to the Court in future if the Constitutional Court fails to provide the applicants with an adequate remedy.

58. In sum, for the reasons mentioned above, the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court , by a majority ,

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President