THIRD SECTION

Application no. 35632/13 Tommy HOHOLM against Slovakia lodged on 30 May 2013

STATEMENT OF FACTS

1. The applicant, Mr Tommy Hoholm , is a Norwegian national, who was born in 1975 and lives in Asvag (the Kingdom of Norway).

He is represented before the Court by Ms I. Kalinová , a lawyer practising in Bratislava (Slovakia).

A. The circumstances of the case

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

1. Events and decisions in Norway

2. In 2000 the applicant married a Slovak national (A.) in Norway. There were two sons of the marriage born in 2000 and 2002 respectively.

3. The family lived together in Norway until May 2004, when the applicant left the family home. On 18 August 2004 an administrative decision was taken in Norway on the couple ’ s separation.

4. On 7 September 2004 the Vesterålen District Court ( tingrett ) (Norway) issued an interim order that, until the resolution of the matter on the merits, the children be under joint parental responsibility of both parents and in the care of A. The court also determined the applicant ’ s visiting rights and forbade both parents to remove the children from the Norwegian territory without the consent of the other parent.

5. Nevertheless, on 8 July 2005, A. with the children left Norway for Slovakia.

6. On 21 September 2005 the Vesterålen District Court ruled that the children be under the exclusive parental responsibility and in the care of the applicant. It also determined the visiting rights of A. and issued an order that she do not remove the children from the territory of Norway. This judgment was upheld by the Hålogaland High Court ( lagmannsrett ) on 10 March 2006 following appeal by A. and her request for leave to appeal on points of law was dismissed by the Appeals Leave Committee of the Supreme Court ( Høyesteretts kjæremålsutvalg ) on 23 May 2006.

2. Proceedings in Slovakia

7. On 14 December 2005 the applicant i nitiated proceedings against A. under the Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention”) seeking an order for the return of the children to the country of habitual residence - Norway.

The action was examined by the courts in four rounds, two of which were followed by enforcement proceedings. They are described below in turn.

(a) First round of examination and first constitutional complaint

8. The first examination resulted in dismissal of the action by the Liptovský Mikuláš District Court ( Okresný súd ) on 23 May 2006 and of the applicant ’ s appeal ( odvolanie ) by the Žilina Regional Court ( Krajský súd ) on 28 February 2007. These decisions became final and binding ( právoplatnosť ).

9. The applicant subsequently petitioned the Prosecutor General to exercise his discretionary power to challenge these decisions by way of an extraordinary appeal on points of law ( mimoriadne dovolanie ) on the applicant ’ s behalf. However, in a letter of 25 October 2007 he was informed that, under the applicable procedural rules, no such extraordinary appeals were available in family ‑ law matters.

10. Meanwhile, on 30 May 2007, the applicant had challenged the ordinary courts ’ decisions by way of a complaint under Article 127 of the Constitution. Upon this complaint, on 12 June 2008, the Constitutional Court ( Ustavný súd ) found a violation of the applicant ’ s rights under Article 6 § 1 of the Convention (fairness), quashed the decision of 28 February 2007 and remitted the matter to the Regional Court for re ‑ examination. No separate issue under Article 8 was identified.

11. The Constitutional Court ’ s judgment was followed by a new decision of the Regional Court of 7 October 2008 to quash the decision of 23 May 2006 and to remit the case to the fist-instance court for a re ‑ examination.

(b) Second round of examination and first petition for enforcement

12. In the second round of examination, an order for the return of the children was issued by the District Court on 16 April 2009 and, following an appeal by A., it was upheld by the Regional Court on 23 June 2009.

As the order thereby became final and binding, on 13 August 2009 the applicant petitioned for enforcement.

13. However, the return order was quashed by the Supreme Court ( Najvyšší súd ) on 7 September 2010 following an appeal on points of law ( dovolanie ) by A. The matter was consequently remitted to the District Court for a fresh examination and, on 30 September 2010, the enforcement proceedings were discontinued.

(c) Third round of examination and second petition for enforcement

14. In the third round of examination, a new order for the return of the children was issued by the District Court on 22 October 2010 and, following an appeal by A., it was upheld by the Regional Court on 25 January 2011.

The order thus again became final and binding and, on 24 February 2011, the applicant petitioned for enforcement.

15. However, the return order was again quashed by the Supreme Court, on 27 July 2011, following an extraordinary appeal on points of law lodged by the Prosecutor General on behalf of A. The matter was consequently again remitted to the District Court for a fresh examination and the enforcement proceedings were terminated.

(d) Fourth round of examination and second constitutional complaint

16. Finally, the fourth round of examination resulted in dismissal of the action by the District Court on 21 November 2011 and, following the applicant ’ s appeal, by the Regional Court on 6 November 2012.

The Public Prosecution Service had joined the proceedings and had also challenged the first-instance decision by way of an appeal but, without giving a reason, their appeal had eventually been withdrawn.

17. In dismissing the action, the courts relied on the Supreme Court ’ s judgment of 27 July 2011 (see paragraph 15 above) and took into account that the children wished to stay with A. in Slovakia; that they had spent more than half of their lives in Slovakia; and that they were integrated there. The courts concluded that, therefore, the best interest of the children was not to be returned to Norway.

The matter became resolved by force of a final and binding decision, on 31 December 2012.

18. Meanwhile, on 3 September 2012, the applicant had challenged the decision of the Supreme Court of 27 July 2011 and that of the District Court of 21 November 2011, as well as the way in which the Regional Court had been dealing with his appeal against the latter decision by way of a fresh constitutional complaint, alleging a violatio n of his rights under Article 6 and 8 of the Convention.

The applicant argued in particular that it was contrary to the equality ‑ of ‑ arms principle for the Prosecutor General to lodge an extraordinary appeal on points of law on behalf of A. in a matter in which the Prosecutor General had previously denied this remedy to the applicant on the ground that no such extraordinary appeal was available as a matter of law.

The applicant further contended that the length of the proceedings had been excessive and that the courts had failed to ensure effective protection of his right to respect for his family life.

Among other things, the applicant submitted that in proceeding on his divorce in Slovakia, which had eventually been discontinued because the divorce had previously been pronounced in Norway, he had been denied an interim arrangement of any visiting rights in respect of the children.

Lastly, the applicant submitted that any attempts at enforcement of the previous return orders had met with no success.

19. On 30 October 2012 the Constitutional Court declared the complaint inadmissible.

As regards the length of the proceedings, the Constitutional Court observed that the Supreme Court and the District Court had determined the matter on 27 July and 21 November 2011, respectively. Therefore, at the time of the introduction of the constitutional complaint, these courts were no longer dealing with the case. Examination of the length of the proceedings before these courts could thus no longer serve their acceleration and, consequently, the applicant could not be considered as having the necessary interest in having it examined. In addition, the length of the proceedings before the Regional Court being relatively short, the remainder of the length-of-proceedings complaint was manifestly ill-founded.

In so far as the constitutional complaint concerned the Supreme Court ’ s decision of 27 July 2011, it was evidently out of the statutory two-month time ‑ limit and, as the proceedings on the applicant ’ s appeal against the decision of 21 November 2011 were still pending, any complaint in relation to their outcome was premature.

The decision was served on the applicant ’ s lawyer on 4 December 2012.

B. Relevant domestic, international and European Union law

20. 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).

21. By way of an extraordinary appeal on points of law, the Prosecutor General has the power to challenge final and binding judgements and decision of the courts upon petition of a party to the proceedings or a person concerned, provided that the impugned judgment or decision contravenes the law, that the protection of the rights and interests of individuals, legal entities or the State so requires, and that such protection cannot be obtained by other legal means (Article 243e § 1 of the Code of Civil Procedure).

22. The relevant rules of international law are summarised for example in the Court ’ s judgment in the case of Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 48 et seq., ECHR 2010), the Convention on the Rights of the Child of 20 November 1989 having entered into force in respect of Slovakia on 6 February 1991 (Notice of the Ministry of Foreign Affairs no. 104/1991 Coll.), and the Convention on the Civil Aspects of International Child Abduction of 25 October 1980 having entered into force in respect of Slovakia on 1 February 2001 (Notice of the Ministry of Foreign Affairs no. 119/2001 Coll.).

23. The relevant provisions of 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 are summarised for example in the Court ’ s judgment in the case of Karrer v. Romania (no. 16965/10, § 21, 21 February 2012).

COMPLAINTS

24. The applicant complains under Articles 6 § 1 and 8 of the Convention:

( i ) that the length of the proceedings was excessive and partly caused by the Constitutional Court itself when it took from 30 May 2007 until 12 June 2008 to determine his constitutional complaint (see paragraph 10 above);

(ii) that as a result manipulation with the children has had its way and the merits of the case are being determined by the mere passage of time;

(iii) that during and as a result of the lengthy proceedings he has been completely severed from his children with no access what so ever;

(iv) that inter alia by allowing for an array of various remedies the respondent State has failed to secure his right to respect of his family life; and

(v) that the ultimate dismissal of his action was arbitrary inter alia because the courts had attributed undue importance to the position of his children, which was the result of brainwashing and manipulation with them, that that the courts had failed to take due account of the “Parental Alienation Syndrome”.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Was the length of the proceedings for return of the children under the Hague Convention in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

3. Did 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 practical effect for the applicant of the proceedings before the Slovakian courts under the Hague Convention, including their enforcement phase, has the applicant ’ s right of access to a court been respected?

4. 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 course, length and final outcome of the proceedings for the return of the children, including the enforcement phase, and the particularly crucial importance of the passage of time in cases such as the present one, has the respondent State discharged its positive obligation to secure the applicant practical and effective enjoyment of his right to respect for his family life, interpreted in the light of the Hague Convention?

Has the way in which the Slovakian authorities handled the proceedings under the Hague Convention, including their enforcement phase, been in accordance with law and necessary in a democratic society within the meaning of Article 8 of the Convention? Has the quality of the relevant domestic law been compatible with the requirements of that Article?

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