Lexploria

Information Note on the Court’s case-law 236

January 2020

Rinau v. Lithuania - 10926/09

Judgment 14.1.2020 [Section II]

Article 8

Positive obligations

Article 8-1

Respect for family life

Political interventions and procedural vagaries to impede court-ordered return of child unlawfully retained by other parent on respondent State’s territory: violation

Facts – The applicants are a German national (the first appli cant) and his daughter (the second applicant) who was born in 2005 to a Lithuanian mother. In 2006 the latter left Germany to take her daughter on holiday to Lithuania but never came back. Various proceedings ensued.

(1) In Germany: in proceedings brought by the first applicant, the courts awarded him provisional custody and ordered the child’s return to him; then in 2007 the couple’s divorce was granted and he was awarded permanent custody of the child.

(2) In Lithuania (where the dispute received nationwi de political and media attention):

– In October 2006 the first applicant brought proceedings for the child’s return under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Brussels II bis Regulation of th e European Union. In March 2007 the Court of Appeal ordered the mother to return her daughter to Germany (in a decision that was immediately enforceable and not amenable to appeal). In June 2007 a writ of execution was issued.

– The mother and the Prosecutor-General sought several times to obtain the reopening of the proceedings on the child’s return, through an application and appeals, including on points of law. In October 2007 the Supreme Court’s President ordered a stay of execution of the retur n order.

– In April 2008 the Supreme Court referred a question to the Court of Justice of the European Union (CJEU), thus delaying its decision until August 2008. The application and appeal for the proceedings to be reopened were denied.

– In October 2008, while the child’s return was again delayed, the first applicant took her out of a childcare centre and drove her to Latvia (where he was briefly under arrest before being allowed to return to Germany); the Lithuanian public prosecutor’s office then opened an investigation against him for abduction, but discontinued the proceedings in November 2009.

In 2009 the first applicant lodged an application with the European Court of Human Rights. The mother subsequently went to live in Germany and obtained a contac t right there.

Law – Article 8: The Court made a distinction between two separate periods in the case.

(a) In the period until June 2007, although lengthy – seven months instead of six weeks under the Hague Convention –, the decision-making in the courts met the requirements of Article 8, taking account of the difficulties of the case.

(b) The subsequent developments led the Court, however, to the conclusion that, as a whole, the authorities’ conduct had failed to fulfil their positive obligations.

It also attached weight to the applicants’ argument that the family relations made possible by the mother’s moderation after her return to Germany would have been out of the question at the time when the constant support of the Lithuanian authorities had g one as far as misleading her by nourishing her hopes of retaining her daughter in Lithuania in spite of the court decisions and the State’s international obligations.

(i) Extrajudicial reactions – After the bailiff had proceeded with the enforcement of the return order, the case had been marked by an upsurge in public, institutional and political pressure (with the notable exception of the President of the Republic).

In addition to a public petition and published letters demonising the first applicant (call ing him “a German pig” and “a Nazi”), with threats received by him, his lawyer and the bailiff, the Court was concerned by what appeared to be a series of concerted official efforts to ensure that the child remained in Lithuania, and in particular:

– membe rs of parliament had openly questioned the validity of judicial decisions; a Minister of Justice had encouraged the mother to believe that the case would be reopened;

– pressure had been exerted on the bailiff not to execute the court decision, and on the social services so that they would go back on their opinion (to the effect that a return to Germany was in the child’s interest);

– the law had been amended to enable the child to acquire Lithuanian citizenship;

– the Government had provided the mother wit h legal and later financial support for the proceedings at the CJEU.

This series of initiatives, having regard to the sequence of events in their entirety, rather than as separate and distinct incidents, showed that there was prima facie evidence of politi cs being involved in the case; this was at odds with the requisite fairness of the decision-making process in the enforcement of the court order for the child’s return.

(ii) Procedural vagaries – Even though it was prohibited by Lithuanian law to call into question the return order, it had nevertheless been challenged in two ways:

– first, the reopening of the proceedings had been sought by the Prosecutor-General, using arguments which either called into question the authority of res judicata , or allowed th e abducting parent to benefit from the passage of time, contrary to the spirit of the Hague Convention;

– secondly, an appeal had been lodged on points of law, in the context of which the Supreme Court, moreover, entered into an examination of factual matt ers, thus going beyond its jurisdiction.

Moreover, the President of the Supreme Court had personally intervened to enable this re-examination.

The series of delays had been further protracted by the Supreme Court’s decision to suspend the proceedings pendi ng a response from the CJEU – even though the preliminary reference had been made under the urgent procedure.

The above-mentioned intervention and procedural vagaries had completely disregarded the fundamental aims of not only the Hague Convention and the EU Regulation but also Article 8 of the Convention.

As to the fact that the first applicant had ultimately taken his daughter back to Germany in a sudden and drastic manner, the Court did not find it necessary to address that point – while noting that he had already waited a long time and also feared fresh delays on account of the mother’s ongoing intransigence.

Thus the time it had taken for the Lithuanian authorities to reach the final decision in the applicants’ case had failed to respond to the urgency of their situation.

Conclusion : violation (unanimously).

Article 41: EUR 30,000 jointly in respect of non-pecuniary damage; claim for pecuniary damage dismissed. The Court also awarded EUR 92,230 for costs and expenses having regard to the particular comp lexity of the case, which had required a number of lawyers, specialising in private international law, EU law and Lithuanian civil and criminal law, who had represented the first applicant before the Lithuanian civil courts and the CJEU, or who had subsequ ently defended him in the criminal courts.

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