Published on 9 October 2023

FIRST SECTION

Application no. 13832/22 S.S. against Poland lodged on 25 February 2022 communicated on 18 September 2023

SUBJECT MATTER OF THE CASE

The application concerns proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) instituted on 20 April 2017 by the applicant, an Indian national, to seek the return of his two sons from Poland to Ireland.

On 23 November 2017 the Wrocław-Fabryczna District Court ( Sąd Rejonowy ) found that the applicant’s wife, A.S., had wrongfully retained the couple’s sons in Poland, and ordered their return to Ireland.

On 4 December 2017, at the requests of A.S. and the Wrocław-Psie Pole District Prosecutor ( Prokurator Rejonowy, “the prosecutor”), the same court stayed the enforcement of that order pending appeal.

On 12 July 2018, the Wrocław Regional Court ( Sąd Okręgowy ) dismissed the appeals that had been lodged by A.S. and by the prosecutor.

On 20 February 2019, following a request lodged by the prosecutor, the district court stayed the enforcement of the return order and ruled that both sons should temporarily remain with A.S. On 29 April 2019 the regional court quashed that order.

On 18 February 2020 the Prosecutor General ( Prokurator Generalny ) lodged an extraordinary appeal ( skarga nadzwyczajna ) against the decision of 12 July 2018.

On 2 March 2020 the regional court stayed the enforcement of the return order.

On 14 April 2021 the Chamber of Extraordinary Review and Public Affairs of the Supreme Court quashed the decision of 12 July 2018 and remitted the case (case no. I NSNc 36/21). It sat in camera in a panel of two judges, including Mr L. Bosek and Mr M. Sadowski who had been appointed to the Supreme Court by the President of Poland on 10 October 2018 on the recommendation of the National Council of the Judiciary ( Krajowa Rada SÄ…downictwa , resolution no. 331/2018 of 28 August 2018), and a lay judge.

On 1 September 2021 the Wrocław Regional Court dismissed the applicant’s Hague Convention application for the return of his children on the grounds that he had been violent towards A.S., the sons were afraid of him, and they did not want to move to Ireland. It concluded that the return would expose them to psychological harm and place them in an intolerable situation within the meaning of Article 13 (b) of the Hague Convention.

The applicant invokes Articles 6 § 1, 8 and 13 of the Convention. He essentially complains of the non-enforcement of the return order of 23 November 2017 and the inability to appeal against the decisions staying the enforcement. He also essentially complains about the excessive length of the domestic proceedings and their ultimate outcome.

In addition, he complains that his case was examined by the Chamber of Extraordinary Review and Public Affairs of the Supreme Court which, in his view, was not an “independent and impartial tribunal established by law” within the meaning of Article 6 § 1 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the Chamber of Extraordinary Review and Public Affairs of the Supreme Court which dealt with the applicant’s case an “independent and impartial tribunal established by law”, as required by Article 6 § 1 of the Convention? Reference is made to the Court’s judgments in Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, 1 December 2020, §§ 205 ‑ 290 and Dolińska-Ficek and Ozimek v. Poland , nos. 49868/19 and 57511/19, 8 November 2021, §§ 283-359.

2. 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, was the dismissal of the applicant’s Hague Convention application compatible with the requirements of Article 8 of the Convention given that the return order of 23 November 2017 was never enforced and that the applicant could not appeal against decisions to stay the enforcement and considering the length of the domestic proceedings and their ultimate outcome?