Communicated on 11 July 2014

THIRD SECTION

Application no. 383/13 Jose Augusto FRISANCHO PEREA against Slovakia lodged on 27 December 2012

STATEMENT OF FACTS

1 . The applicant, Mr Jose Augusto Frisancho Perea, is a Peruvian national, who was born in 1963 and lives in Maryland (the United States of America).

He is represented before the Court by Mr I. Gažík, a lawyer practising in Prievidza (Slovakia).

A. The circumstances of the case

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

1. Background

3 . Since 1999 the applicant has been married to A., a Slovak national.

The marriage produced three children: B., born in 1999, C., born in 2002 and D., born in 2004.

The children are all Slovak nationals, while B. is also a Peruvian national, and C. and D. also have the United States nationality.

4 . For about eight years, until July 2010, the family lived together in one household in Maryland. A. then moved to stay with friends, took the children along, the couple agreed on alternating custody, and they started receiving marriage counselling. Nevertheless, A. filed for divorce, but then withdrew her petition.

5 . On 25 August 2010 A. left the United States for Slovakia, taking the children with her. The following day, that is to say on 26 August 2010, she informed the applicant that they had left and that she had no intention of coming back.

6 . In September 2010 A. filed for divorce in Slovakia and requested that the children be entrusted to her custody by way of an interim measure. The status and outcome (if any) of these proceedings is not known.

2. Hague Convention Proceedings

7 . On 14 October 2010 the applicant filed an application for the return of the children to the United States as the country of their habitual residence, relying on the (Slovakian) International Private and Procedural Law Act (Law no. 97/1963 Coll., as amended), the 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, and the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).

8 . On 25 November 2010 the applicant ’ s Hague Convention application was transmitted to the Bratislava I District Court ( Okresn ý súd ), through the intermediary of the Slovak Central Authority responsible for implementing the Hague Convention.

9 . On 21 January 2011 the District Court ordered the children ’ s return to the United States, having founded that it was the country of their habitual residence, that they had been removed from there wrongfully, and that no obstacles to the return had been established.

10 . A. then appealed ( odvolanie ), and the applicant filed observations in reply to her appeal.

11 . On 28 April 2011, sitting in chambers, the Bratislava Regional Court ( Krajsk ý súd ) dismissed the appeal and upheld the return order.

It recalled the purpose of the Hague Convention proceedings, that is to ensure a prompt return of wrongfully removed or retained children to the country of their habitual residence so that substantive questions such as the custody of the children may be determined by the courts of that country. Conversely, it observed that it was not the purpose of the given proceedings to define or change any parental rights and responsibilities.

The Regional Court considered that the District Court had properly realised the object and purpose of the Hague Convention, had correctly established the scope of the proceedings, and – within that scope – had rightly assessed the facts and applied the relevant law.

The Regional Court ’ s decision became final and binding on 9 May 2011.

3. Enforcement proceedings

12 . On 31 May 2011 the applicant petitioned the Kom árno District Court for judicial enforcement of the return order.

13 . Upon several unsuccessful attempts at having A. comply with the return order voluntarily, the District Court acceded to the petition on 28 November 2011 by issuing a warrant for the enforcement of the order.

14 . On 29 June 2012 the Nitra Regional Court quashed the enforcement warrant following an appeal by A. It observed that, meanwhile, A. had challenged the decision of 28 April 2011 by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) to the Constitutional Court ( Ústavný súd ) ; that on 15 December 2011 the Constitutional Court had declared that complaint admissible; and that, at the same time, the Constitutional Court had suspended the enforceability of the return order pending the outcome of the proceedings on the merits of the complaint of A. (see paragraphs 18 and 19 below).

The Regional Court concluded that, in those circumstances, an essential prerequisite for the enforcement of the return order had lapsed.

Consequently, the matter was remitted to the District Court for a new decision to be taken in the light of the outcome of the constitutional complaint of A.

15 . The applicant challenged the decision of 29 June 2012 by way of an appeal on points of law ( dovolanie ). He pointed out that there had been no hearing before the Regional Court and that it was only from the Regional Court ’ s decision that he had learned of the Constitutional Court ’ s decisions underlying it and of other new relevant facts.

As the Constitutional Court ’ s decisions had not been served on him and he had had no knowledge of those facts, he had been deprived of an opportunity to comment and to consider the taking of other legal steps.

This was contrary to the principles of adversary proceedings and equality of arms and, in the applicant ’ s submission, he had thereby been “prevented from acting before the court”, which constituted an admissibility ground for his appeal under Article 237 (f) of the C ode of Civil Procedure (Law no. 99/1963 Coll., as amended – “CCP”).

16 . On 6 December 2012 the Supreme Court ( Najv yšší súd ) declared the appeal inadmissible. It observed that the Regional Court had of its own motion obtained a copy of the Constitutional Court ’ s decision to suspend the enforceability of the return order, that it had based its decision on it, and that a copy of the Constitutional Court ’ s decision had never been served on the applicant.

However, the Supreme Court also noted that the Constitutional Court ’ s decision was binding upon the Regional Court and considered that, therefore, having it served on the applicant and having allowed him to comment on it could not have had any impact on the Regional Court ’ s decision.

Therefore, in the Supreme Court ’ s conclusion, the admissibility ground invoked by the applicant had not been given.

17 . In consequence, it became incumbent upon the District Court to rule on the applicant ’ s enforcement petition anew, which it did on 18 January 2013 by dismissing it. The District Court observed that on 16 May 2012 the Constitutional Court had quashed the decision upholding the return order and that it had remitted the appeal of A. against that order to the Bratislava Regional Court for a new determination (see paragraph 21 below). The return order was thus pending on appeal and, as such, it was no longer enforceable.

The District Court ’ s decision became final and binding on 8 February 2013.

4. Constitutional proceedings

(a) Complaint by A.

18 . On 6 July 2011 A. challenged the decision of 28 April 2011 to uphold the return order (see paragraph 11 above) by way of a complaint to the Constitutional Court. She submitted that the applicant ’ s observations in reply to her appeal against the return order (see paragraph 10 above) had not been served on her; that her appeal had been determined without a hearing; and that she had accordingly been deprived of the opportunity to comment on those observations, which was contrary to her rights under Articles 46 § 1 (right to judicial protection), 47 § 3 (equality of parties to judicial proceedings) and 48 § 2 (right to comment on the evidence assessed) of the Constitution, as well as Article 6 § 1 (fairness) of the Convention.

In addition, A. requested that the Constitutional Court indicate an interim measure to the effect that the enforceability of the contested decision be suspended.

19 . On 15 December 2011 the Constitutional Court declared the complaint admissible and ruled that the enforceability of the decision of 28 April 2011 should be suspended pending the outcome of the proceedings on the merits.

As to the latter ruling, the Constitutional Court found (i) that the measure was not contrary to any important public interest, (ii) that not having the enforceability of the return order suspended could lead to an irreversible situation and “cause detriment to the property sphere” of A. in potential violation of her fundamental rights and freedoms, and (ii) that having the enforceability suspended “gave rise to no risk of damage to any party concerned”.

20 . In the ensuing proceedings on the merits, the Bratislava Regional Court as the defendant of the complaint submitted, inter alia , that there was no statutory requirement for observations in reply to an appeal to be communicated for further observations of the appellant, unless the former observation had a substantial impact on the determination of the appeal. However, the applicant ’ s observations in reply to the appeal by A. had had no such impact.

21 . In a judgment ( nález ) of 16 May 2012 the Constitutional Court found a violation of the rights of A. as identified above (see paragraph 21), quashed the decision of 28 April 2011, remitted the case to the Regional Court for a new determination of the appeal of A. against the return order, and awarded her legal costs. It principle, the Constitutional Court fully embraced the line of argument advanced by A.

22 . The Constitutional Court also noted that the applicant had sought leave to intervene in the proceedings as a third party.

In that respect, it observed that constitutional proceedings were conducted in the procedural framework laid down in the Constitutional Court Act (Law no. 38/1993 Coll., as amended), as a lex specialis , and in the CCP, as a lex generalis . The Constitutional Court Act however envisaged no standing for third parties to intervene in proceedings on individual complaints under Article 127 of the Constitution, and its quality of a lex specialis excluded the application of the third-party-intervention rules under the CCP.

For that reason, the Constitutional Court observed specifically that it had taken no account of the submissions made by the applicant.

The applicant obtained a copy of the Constitutional Court ’ s judgment on 16 August 2012.

(b) Complaint by the applicant

23 . On 28 February 2013 the applicant lodged a complaint with the Constitutional Court, alleging inter alia a violation of his rights under Article 46 § 1 of the Constitution (right to judicial protection) and Article 6 § 1 of the Convention (fairness) in the enforcement proceedings, in particular in their phase before the Regional Court and the Supreme Court, and raising in substance the same arguments as in his appeal on points of law (see paragraph 15 above). The applicant pointed out, in addition, that that it had been for substantially the same reasons that the Constitutional Court itself had found a violation of the rights of A. in relation to her appeal against the return order.

24 . On 5 November 2013 the Constitutional Court declared the complaint inadmissible. It fully endorsed the reasoning behind the Supreme Court ’ s decision of 6 December 2012 (see paragraph 17 above) and concluded that, accordingly, the complaint was manifestly ill-founded.

The decision was served on the applicant on 9 December 2013.

5. Subsequent developments

25 . Following the Constitutional Court ’ s judgment of 16 May 2014, t he Hague Convention proceedings appear to be still pending.

B. Relevant domestic law and practice

1. Constitution

26 . The “right to judicial and other legal protection” is laid down in Section ( Oddiel ) Seven of Part ( Hlava ) Two, dealing with “basic rights and freedoms”. The relevant part of Article 46 provides as follows:

“1. Everyone shall be able to assert his or her rights in a procedure provided for by a statute before an independent and impartial court of law and, in cases defined by a statute, before another organ of the Slovak Republic...

4. Conditions and details of judicial and other legal protection shall be provided for by a statute.”

27 . The right to procedural equality is laid down in Article 47 § 3, which provides that:

“All parties in proceedings [before courts, other State organs or organs of public administration] are equal.”

28 . The relevant part of Article 48 § 2 provides:

“Everyone shall have the right to have his or her matter ... heard publically ... in his or her presence, and to comment on all the evidence examined. ...”

29 . Article 127, subsumed under Section One (dealing with Judicial Power) of Part Seven (dealing with the Constitutional Court), provides:

“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 justified, it shall deliver a decision stating that a 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 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 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 the person whose rights under paragraph 1 have been violated.”

2. Constitutional Court ’ s practice

30 . It has been the Constitutional Court ’ s practice (i) to examine complaints about a violation of fundamental rights or freedoms of a substantive nature only in so far as the complainant simultaneously invokes a breach of constitutional guarantees of a procedural nature; (ii) that an ordinary court cannot bear ‘ secondary liability ’ for a breach of such rights of substantive nature unless there had been a constitutionally relevant violation of the rules of procedure, and (iii) that application of a statute in judicial proceedings in a manner consistent with the applicable procedural rules may not amount to a violation of fundamental rights and freedoms (see, for example, decisions of the Constitutional Court of 14 February 2008 in case no. III. ÚS 51/08, 18 September 2008 in case no. I. ÚS 292/08 , 26 February 2009 in case no. I. ÚS 61/09, 14 December 2010 in case no. I. ÚS 485/10, and of 31 May 2012 in case no. IV. ÚS 285/12, with further references).

COMPLAINTS

31 . The applicant complains:

(i) that he decision of the Constitutional Court of 15 December 2011 and other material relevant for the conduct and outcome of the enforcement proceedings was not served on him;

(ii) that he was thereby deprived of the possibility to comment, adjust his strategy, and exercise his rights on equal footing to A.;

(iii) that he was not allowed to take part in the proceedings before the Constitutional Court despite having a direct interest in their outcome;

(iv) that the Constitutional Court frustrated the entire purpose of the Hague Convention proceedings; and

(v) that he has had no effective remedy in that respect.

He relies on Article 6 § 1 of the Convention (fairness) and, in substance, also on Articles 8 and 13 of the Convention.

QUESTIONS TO THE PARTIES

1. In the proceedings for the enforcement of the return order, d id the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular , in view of the fact that the applicant could not take part in the proceedings before the Constitutional Court, which had a direct impact on the course and outcome of the enforcement proceeding, was the applicant ’ s right of access to a court respected?

In view of his allegation that, in the enforcement proceedings, crucial documents were not served on him and he had no opportunity to comment and adjust his strategy, were the principles of equality of arms and of adversarial proceedings respected?

2. In the Hague Convention proceedings, d id the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, in view of the fact that the applicant could not take part in the proceedings before the Constitutional Court, which had a direct impact on the course of the Hague Convention proceedings in that a final, binding and enforceable return order was quashed, combined with the particularly crucial importance of the passage of time in cases such as the present one,

a) was the applicant ’ s right of access to a court respected?

b) was the principle of legal certainty respected?

3. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention?

In particular, in view of the fact that the effects of a final and binding return order were suspended and it was eventually quashed as a result of constitutional proceedings, from which the applicant was entirely excluded, combined with the particularly crucial importance of the passage of time in cases such as the present one, has the respondent State discharged its positive obligations under Article 8 of the Convention to secure the applicant ’ s practical and effective enjoyment of his right to respect for his family life, interpreted in the light of the Hague Convention (see López Guió v. Slovakia , no. 10280/12 , 3 June 2014, with further references )?

4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8, as required by Article 13 of the Convention?