The ECHR revealed a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR revealed a violation of the requirements of Article 8 of the Convention for the Protection of Human Сведения: 2020-08-25 12:25:56

Judgment of the ECHR of January 14, 2020 in the case "Rinau v. Lithuania" (application no. 10926/09).

In 2009, the applicants received assistance in preparing their application. Subsequently, the application was communicated to Lithuania.

The case successfully examined a complaint about political interference and procedural deficiencies in order to prevent the court-ordered return of a child illegally detained by another parent in a foreign state. The case violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


THE CIRCUMSTANCES OF THE CASE


The applicants in the case are a German citizen (the applicant) and his daughter (the applicant), who was born in 2005 from a marriage with a Lithuanian citizen. In 2006, the latter left Germany to take her daughter to Lithuania on vacation, but she never returned to Germany. This was followed by the following lawsuits:

(1) in Germany: the applicant applied to the court, which ruled to appoint him a temporary guardian and to return his daughter. In 2007, the divorce was ordered and the applicant was granted permanent custody of his daughter.

(2) In Lithuania (where the case was widely discussed both at the political level and in the media):

- in October 2006, the applicant applied to the court for the return of his daughter on the basis of the Hague Convention on the Civil Aspects of International Abduction of Children of 25 October 1980 (hereinafter - the Hague Convention) and the European Union Brussels IIbis Regulation. In March 2007, the appellate court ordered the mother to return her daughter to Germany (by passing a judgment that was subject to immediate execution and could not be appealed). In June 2007 a writ of execution was issued;

- the daughter's mother and the Prosecutor General tried several times to obtain the resumption of the proceedings on the return of the child by filing an application and complaints, including on issues of law. In October 2007, the Chief Justice of the Supreme Court of Lithuania suspended the execution of the order to return the child;

- in April 2008, the Supreme Court of Lithuania referred the issue to the Court of Justice of the European Union, postponing the decision until April 2008. The petition and complaint filed with the aim of obtaining the reopening of the proceedings were dismissed;

- in October 2008, when the return of the child was again delayed and the applicant took his daughter from the orphanage and took her to Latvia (where he was briefly detained and then allowed to return to Germany). Thereafter, the Lithuanian Prosecutor's Office launched an investigation into the abduction, but stopped proceedings on it in November 2009.

In 2009 the applicant lodged an application with the European Court. The girl's mother subsequently went to live in Germany and received the right to see the child in this country.


QUESTIONS OF LAW


Compliance with Article 8 of the Convention. The Court has drawn a distinction between the two time periods in the present case.

(a) In the period up to June 2007, although a lengthy one, seven months instead of the six weeks stipulated in the Hague Convention, the judicial decision-making process complied with the requirements of Article 8 of the Convention, taking into account the difficulties of the case.

(b) Further considerations, however, led the Court to conclude that, on the whole, the authorities' actions were inconsistent with their positive obligations.

It also highlighted the applicants' argument that family relations, which had become possible due to the restrained behavior of the mother after her return to Germany, had been excluded at a time when assistance from the Lithuanian authorities went so far as to mislead her about the possibility of keeping daughters in Lithuania, despite court decisions and international obligations of the state.

(i) Extrajudicial Reactions. After the bailiff began executing the order to return the child, pressure on the case from the public, the state, political forces (with the exception of the President of Lithuania) resumed.

In addition to facts such as the drafting of a public petition and the publication of letters demonizing the applicant (in which he was called a “German pig” and a “Nazi”) and that the applicant, his lawyer and the bailiff received threats, the Court was alarmed what appeared to be a deliberate official effort to ensure that the child remains in Lithuania, in particular:

- Members of parliament openly expressed doubts about the legality of the court decisions, and the Minister of Justice of Lithuania assured their mother that the proceedings on the case would be resumed;

- pressure was exerted on the bailiff in order to force him not to comply with the court decision, as well as on social services in order for the latter to change their opinion that returning to Germany was in the interests of the child;

- amendments have been made to the domestic legislation to enable the child to acquire Lithuanian citizenship;

- the Lithuanian authorities provided the mother with legal and then financial assistance in the framework of the proceedings before the Court of Justice of the European Union.

These measures, taking into account the sequence of events as a whole, rather than individual incidents, indicated that there was prima facie evidence that political interests were involved in the present case, which did not correspond to the necessary fairness of the decision-making process in the execution of the order for the return of the child.

(ii) Procedural deficiencies. Although the order to return the child could not be appealed under Lithuanian law, it was nevertheless challenged in two ways:

- firstly, the General Prosecutor of Lithuania demanded the reopening of the proceedings, using arguments that either cast doubt on res judicata or allowed the parent who abducted the child to take advantage of the lapse of time, which was not in line with the spirit of the Hague Convention;

- secondly, a complaint was filed on issues of law, during the consideration of which the Supreme Court of Lithuania also considered issues of fact, thereby exceeding the limits of its jurisdiction.

In addition, the President of the Supreme Court of Lithuania personally intervened in the case so that it could be re-examined.

Further delays in the consideration of the case were caused by the decision of the Supreme Court of Lithuania to suspend the proceedings pending a response from the Court of Justice of the European Union, although the preliminary request was sent as part of an urgent procedure.

The aforementioned interference and procedural shortcomings completely ignored the fundamental objectives of not only the Hague Convention and the Rules of the European Court, but also Article 8 of the Convention.

As regards the fact that the applicant ended up unexpectedly taking his daughter to Germany, the Court did not consider it necessary to address this issue, noting that the applicant had already waited for a long period of time and was afraid of further delays as the mother continued to object to the child's return.

Thus, the time it took for the Lithuanian authorities to take a final decision in the applicants' case did not correspond to the need arising from the urgency of taking a decision in the current situation.


RESOLUTION


There was a violation of Article 8 of the Convention in the case (adopted unanimously).


COMPENSATION


Application of Article 41 of the Convention. The Court awards EUR 30,000 jointly to both applicants in respect of non-pecuniary damage, dismissing the claims for pecuniary damage. It also awarded the applicant EUR 92,230 in legal costs and expenses, given the particular complexity of the case, which required the participation of a number of lawyers specializing in private international law, European Union law and Lithuanian civil and criminal law, who represented the applicant in civil courts of Lithuania and the Court of Justice of the European Union or subsequently defended him in criminal courts.

 

 

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