FIRST SECTION

DECISION

Application no . 22796/16 Karino Issufo Ussene AMADE against the Czech Republic

The European Court of Human Rights ( First Section ), sitting on 13 September 2016 as a Committee composed of:

Linos-Alexandre Sicilianos , President, Ledi Bianku , Aleš Pejchal , judges, and Renata Degener , Deputy Section Registrar ,

Having regard to the above application lodged on 19 April 2016 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Karino Issufo Ussene Amade , is a Portuguese national, who was born in 1976 and lives in Pontinha (Portugal) . He was represented before the Court by Mr M. Bukovský , a lawyer practising in Vsetín .

The circumstances of the case

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

In 2010 in Portugal the applicant met M.P., a Czech national. Shortly afterwar ds they moved together and in 201 1 their son G. was born. The child was born in Portugal and raised in Portugal, Australia, and the Czech Republic.

O n 28 October 2012 the mother flew with the child from Portugal to the Cze ch Republic. In December 2012 the parents separated and the mother initiated custod y proceedings, which are not object of this application. The contact between the son and his father had been established on the basis of a n interim decision given in the proceedings .

On 18 February 2013 the father initiated proceedings before the Brno Municipal Court seeking the child ’ s return on the basis that he had been wrongfully removed under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (the “Hague Convention”). He also initiated custody proceedings in Portugal.

On 7 May 2013 the Brno Municipal Court ruled in the applicant ’ s favour and ordered the mother to return the child to Portugal. She appealed to the Brno Regional Court.

On 2 July 2013 the Brno Regional Court suspended the enforceability of the above-mentioned decision. It also summoned the parties to a hearing scheduled to take place on 30 July 2013. On 10 July 2013, the applicant, through his Czech legal representative, filed written observations in which he addressed the question of habitual residence of the child and requested the appellate court to postpone the hearing until the end of August. On 15 July 2013 the Brno Regional Court informed the applicant ’ s representative that, considering the subject matter of the proceedings, the hearing could not be postponed.

On 6 August 2013 the Brno Regional Court quashed the judgment and dismissed the applicant ’ s claim. The appellate court took the view that the child ’ s removal had not been wrongful within the meaning of Article 3 of the Hague Convention because it could not be said that the child had been habitually resident in Portugal immediately before the removal.

On 14 October 2013 the applicant lodged a constitutional appeal.

On 19 November 2015 , b y the decision no. III. ÚS 3136/13, the Constitutional Court dismissed his appeal as manifestly ill-founded. In the course of the proceedings before the Constitutional Court, the applicant on several occasions requested the court to decide his case expeditiously.

According to the applicant, the Portuguese courts dealing with custody proceedings were awaiting the decision of the Constitutional Court.

During the proceedings the applicant remained in regular contact with his son on the basis of the interim decision.

COMPLAINTS

1. Relying on Article 6 § 1, the applicant complained about unfair proceedings before the Brno Regional Court.

2. The applicant also invoked Article 8, relying on Macready v. the Czech Republic (nos. 4824/06 and 15512/08, 22 April 2010), and submitting that there had been undue delays in the proceedings before the Constitutional Court . He stressed that the Portuguese court s had been waiting for the decision of the Constitutional Court and for that reason he could have only supervised contact with his son.

THE LAW

A. Alleged violation of Article 6 § 1

The applicant complained that the decision of the Brno Regional Court was surprising and that the appellate court had failed to give adequate reasons for its decision. He added that the appellate court had not admitted evidence at the hearing and that it did not adjourn the hearing in order to give him a possibility to attend it. He relied on Article 6 § 1, which , in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

( i ) The Court observes at the outset that the Brno Regional Court reached indeed a different legal opinion on the question of the child ’ s habitual residence than the Brno Municipal Court. However, it cannot be considered unfair, considering that the question of habitual residence within the meaning of Article 3 of the Hague Convention was a primary legal question during the whole proceedings and both parties put forward their arguments in this regard, including during the hearing before the appellate court. The Court considers that it is not for it to decide whether the international removal of a child was or was not “unlawful ” within the meaning of Article 3 of the Hague Convention. Indeed, it is not the Court ’ s function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I): it is for the domestic courts to resolve problems of interpretation and application of domestic legislation, including the Hague Convention (see X v. Latvia [GC] , no. 27853/09 , § 62 , ECHR 2013 ).

In the instant case, it cannot be said that the applicant did not have a fair hearing. In particular, t he reasons which were given by the Brno Regional Court in its decision of 6 August 2013 were set out at length and t he applicant ’ s arguments which, viewed objectively, were relevant to the resolution of the case were duly heard and examined ( see and contrast with R.S. v. Poland , no. 63777/09 , § 66 , 21 July 2015 ).

(ii) It is true that the Brno Regional Court did not admit all proposed evidence at the hearing held on 30 July 2013 and did not adjourn the hearing, which the applicant could not attend. However, having regard to a wide margin of discretion left to the national courts in such matters as admission and evaluation of evidence, this by itself does not render the proceedings unfair. In addition, the record of the hearing shows that the appellate court considered a large body of written evidence and heard both parties, either directly or through representatives. The applicant ’ s lawyer did not contest the manner of dealing with evidence during the hearing and did not ask for additional evidence to be admitted or considered . There is no indication of excessive formalism on the part of the appellate court in relation to the taking of evidence . T he Court further notes that the applicant was informed properly by the appellate court that , considering the subject matter , the hearing could not have been adjourned as he requested, and that his interests had been protected by his representative who attended the hearing.

In sum, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the applicant ’ s rights protected under Article 6 § 1 of the Convention.

Consequently, the applicant ’ s complaint under Article 6 § 1 of the Convention must be rejected as manifestly i ll-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Alleged violation of Article 8

The applicant complained that the length of proceedings before the Constitutional Court adversely affected his contact rights . He relied on Article 8, which , in so far as relevant, read s as follows:

“1. Everyone has the right to respect for his ... family life .

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court points out that the requirement of expeditious procedures under Article 11 of the Hague Convention concerns the return applications, including on appeal (see X v. Latvia [GC], cited above , § 36). The Court further observers that the case-law concerning remedies available in the Czech Republic in respect of the length of this type of proceedings has evolved since the judgment Macready v. the Czech Republic (nos. 4824/06 and 15512/08, 22 April 2010 ) . The Court considered indeed that an effective acceleratory remedy must be available in child care proceedings before the general courts and that the request to set a time-limit for a procedural step, provided by Article 174a of Act no. 6/2002, does constitute such remedy in the Czech law (see Drenk v. the Czech Republic , no. 1071/12, § 70, 4 September 2014).

The instant case concerns proceedings before the Constitutional Court which lasted for 2 years and one month . T he Court accepts that the practical usability of this remedy may be questionable as Act no. 6/2002 provides for its application in proceedings before general courts and the Court has no examples before it proving that Article 174a can be relied on before the Constitutional Court.

However, the Court notes that the constitutional appeal is an extraordinary remedy . W hen the applicant i ni t iated the proceedings before the Constitutional Court , already two levels of courts had addressed the merits of his case and the final decision – according to which the child was to stay in the Czech Republic - had been in force (compare Macready , cited above , § 64). In addition, as it follows from the case file, d espite the pending proceedings before the Constitutional Court, the applicant remained in regular contact with his son on the basis of the interim decision and neither the mother nor the authorities hindered their contact ( see and compare Macready , cited above , § § 17 and 66 ) . Thus, in these circumstances, it cannot be said that the length of the proceedings before the Constitutional Court, however considerable , adversely affected the substance of his rights under Article 8 of the Convention .

It follows that the complaint under Article 8 of the Convention is manifestly ill ‑ founded and must be rejecte d in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 6 October 2016 .

Renata Degener Linos-Alexandre Sicilianos              Deputy Registrar President