|
European Court of Human Rights Decision
against Poland:
"[T]he
Court concludes that the Polish authorities failed to make adequate
and effective efforts to enforce the applicant's right to the return
of his children and thereby breached his right to respect for his
family life, as guaranteed by Article 8. There has consequently been
a violation of Article 8 of the Convention."
FOURTH SECTION CASE OF H.N. v. POLAND (Application no. 77710/01)
JUDGMENT STRASBOURG 13 September 2005
This judgment will become final in the circumstances set out in Article
44 § 2 of the Convention. It may be subject to editorial revision.
In
the case of H.N. v. Poland, The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of: Sir Nicolas Bratza,
President, Mr J. Casadevall, Mr G. Bonello, Mr R. Maruste, Mr S.
Pavlovschi, Mr L. Garlicki, Mr J. Borrego Borrego, judges, and Mr M.
O'Boyle, Section Registrar, Having deliberated in private on 25 August
2005, Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1.
The case originated in an application (no. 77710/01) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Norwegian national, Mr H.N. (“the applicant”),
on 23 October 2000. The President of the Chamber acceded to the
applicant's request not to have his name disclosed (Rule 47 § 3 of the
Rules of Court).
2.
The applicant, who had been granted legal aid, was represented by Mr T.
Nilsen, a lawyer practising in Levanger. The Polish Government (“the
Government”) were represented by their Agents, Mr K. Drzewicki, and
subsequently, Mr. J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.
The applicant alleged, in particular, that the non-enforcement of the
final return order under the 1980 Hague Convention on the Civil Aspects
of International Child Abduction had violated his rights under Articles
6 and 8 of the Convention.
4.
The application was allocated to the Fourth Section of the Court (Rule
52 § 1 of the Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was
constituted as provided in Rule 26 § 1.
5.
By a decision of 17 February 2004, the Court declared the application
partly admissible.
6.
On 1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed Fourth
Section (Rule 52 § 1).
THE FACTS
I.
THE CIRCUMSTANCES OF THE CASE
7.
The applicant was born in 1946 and lives in Norway.
A.
The applicant's family
8.
In 1987 the applicant married a Polish national M.C. In 1989 M.C. gave
birth to their first daughter A. Subsequently, their son B was born in
1992 and their second daughter C in 1994.
9.
The applicant and his family lived in Norway. The household also
included S.C., the son of M.C. born in 1980 of her previous marriage.
10. On 22 November 1994 M.C. was committed to a psychiatric institution
for more than two months. According to the applicant she was diagnosed
with “a clear paranoid psychosis”.
11. S.C. suffered from development disorders caused by “massive
rejection” by his mother.
B.
The separation
12. On 31 March 1998 the applicant and M.C. separated. Subsequently,
they filed for divorce.
13. On 15 June 1998 the Inderøy District Court granted the applicant the
custody of A, B and C. Moreover, the court granted M.C. visiting rights.
She was allowed to visit the children in their house once a week and
every second weekend after giving the applicant a three-day written
notice. At the same time, the court issued a restraining order
prohibiting M.C. from visiting the children in their schools. The
applicant and M.C. were both granted parental authority.
14. On 17 July 1998 the Trondheim Regional Court dismissed M.C.'s appeal
against the District Court's decision.
C.
The abduction of the children and the application for their return
15. On 28 August 1999 M.C. abducted A, B and C and took them to Poland.
16. On 31 August 1999 the applicant applied to the Polish Ministry of
Justice – designated as a Central Authority under the Hague Convention
on the Civil Aspects of International Child Abduction (“the Hague
Convention”) – for assistance in securing the return of the children.
17. On 9 September 1999 M.C. applied to the Warsaw District Court for a
decision declaring that A, B and C were habitually resident in Warsaw.
She also applied for a restraining order prohibiting the applicant from
removing the children from Poland.
18. On 24 September 1999 the applicant's application for the return of
the children was submitted by the Polish Central Authority to the Warsaw
District Court.
19. On 5 October 1999 the Warsaw District Court stayed the proceedings
concerning the application lodged by M.C. The court's decision was based
on Article 16 of the Hague Convention.
20. On 22 November 1999 a Polish translation of an expert opinion
obtained by the Inderøy District Court on 4 October 1999 was submitted
to the Polish Ministry of Justice.
21. On 25 November 1999 the Warsaw District Court held a hearing in a
case concerning the applicant's application for the return of the
children. M.C., whose lawyer did not attend the hearing, informed the
court that she would like to submit later certain documents confirming
that she and her children had been ill-treated by the applicant. The
hearing was adjourned until 6 December 1999.
22. On 6 December 1999 the court requested an expert opinion on the
relationships between the children and their parents and on whether the
return of the children to the applicant would lead to psychological or
physical damage to the children. The hearing was adjourned until 10
January 2000.
23. On 7 December 1999 the applicant, M.C. and the children were
interviewed by the Warsaw Family Consultation Centre, which was
responsible for preparing the expert opinion.
24. On 5 January 2000 the Inderøy District Court granted the applicant
parental authority in respect of A, B and C and changed M.C.'s visiting
rights. It considered that M.C. had unlawfully taken the children to
Poland.
25. On 10 January 2000 the hearing before the Warsaw District Court was
adjourned sine die because the expert opinion was not ready.
26. The expert opinion was submitted on 2 February 2000. It had six
pages and ended with the following conclusion: “The emotional ties of
the children with both parents still exist but are disturbed as a result
of conflicts in the family environment. The father's attitude to the
children does not raise any problems and the mutual relationships
between him and [B] and [C] are correct. However, significant problems
exist in the relationship between the father and [A], who partly
identifies herself with her mother and whose attitude to the father is
dictated by [the mother]. Therefore, transferring her to the care of the
father may be difficult. Nevertheless, the existing disturbances in the
behaviour of [A] show that the father will better guarantee a proper
functional development in future."
27. On 24 February 2000 the Warsaw District Court held a hearing.
28. The next hearing took place on 2 March 2000. The Warsaw District
Court allowed an application for the return of the children lodged by
the applicant and ordered M.C. to return them to the applicant. As M.C.
declared that she would appeal this decision, the court granted the
applicant visiting rights pending the outcome of the appellate
proceedings. During the hearing the counsel for the applicant asked the
judge to take the children away from M.C. and place them in a child care
facility as there was a risk that M.C. would hide the children. However,
the judge refused the request as she considered that such a risk did not
exist.
29. Subsequently, M.C. lodged with the Warsaw Regional Court an appeal
against the District Court's decision of 2 March 2000.
30. On 30 May 2000 the Warsaw Regional Court held a hearing. The counsel
for M.C. submitted a medical certificate confirming that she was sick
and could not attend the hearing. The court adjourned the hearing until
4 July 2000.
31. On 4 July 2000 the Warsaw Regional Court dismissed an appeal lodged
by M.C. During the hearing M.C. and her lawyer declared that the
children would be hidden.
D.
The enforcement proceedings
32. On 27 July 2000 the enforcement proceedings began. The bailiff (komornik)
requested M.C. to return the children but she refused.
33. On 31 July 2000 the applicant paid 1,600 Norwegian kroner to the
bailiff.
34. On 14 September 2000 the bailiff referred the case file to the
Warsaw District Court.
35. On 19 October 2000 the court held the first hearing in the
enforcement proceedings. M.C. did not attend it. She submitted a medical
certificate confirming that she was sick.
36. The next hearing before the Warsaw District Court was held on 23
November 2000. The court adjourned the hearing as it considered that it
was necessary to hear both parties to the proceedings.
37. On 5 December 2000 the Polish Central Authority informed the
Norwegian Central Authority about the District Court's decision of 23
November 2000. The applicant submitted that the Polish Central Authority
had not informed him that he should have attended the hearings held on
19 October and 23 November 2000 and that he had not received summonses
from the Warsaw District Court to attend them.
38. On 7 January 2001 the applicant was examined in Warsaw by a court
expert in psychology.
39. On 8 January 2001 the Warsaw District Court held a hearing. The
court ordered M.C. to return the children to the applicant within seven
days. It also decided that if she did not comply with the order she
would be punished with a 1,000 Polish zlotys fine or a ten-day prison
term in default. The court also ordered the bailiff to take the children
away from M.C. by force if they were not returned within seven days.
40. M.C. appealed the District Court's decision of 8 January 2001 but
her appeal was dismissed on 6 March 2001 by the Warsaw Regional Court.
41. On 2 April 2001 the bailiff sent to the District Committee for the
Protection of the Rights of the Child in Warsaw a written request for
their assistance in the enforcement of the District Court's order to
take the children away from M.C. by force. The request referred to
Article 1092 of the Code of Civil Procedure and included information
that the bailiff would enforce the court's order on 19 April 2001 at 1
p.m. at M.C.'s house in Warsaw.
42. On 4 April 2001 the Norwegian Central Authority passed to the Polish
Central Authority the applicant's concerns that M.C., who had already
hidden the children in the past, might hide them again and asked whether
it was possible to take any measures to prevent this and in particular
to bring forward the date of enforcement of the court order.
43. On 9 April 2001 the Polish Central Authority replied in the
following terms: “I would like to inform you that there is no
possibility [of executing] the Court decision in another way. It is true
that the Court of Justice is allowed to [take preventive] measures but
the execution of the measures will be held on the same bases as the
[substantive] decision. Mr. N (...)'s anxieties have been transmitted to
the proper court. The [execution of the decision] may not take place
before the established date.”
44. On 17 April 2001 the applicant had a meeting with the bailiff. He
informed the applicant that following his request of 2 April 2001 he had
contacted the Committee. He had been advised that it would not send a
representative to assist in the enforcement of the court's decision on
19 April 2001. In addition, a person speaking on behalf of the Committee
had made the following statement to the bailiff: “You understand that I
do not agree with that and the mother of the children will be
immediately informed about the date and time of the enforcement.”
45. According to the applicant, the bailiff did not take any steps to
speed up enforcement of the court's order.
46. On 19 April 2001 the bailiff assisted by two police officers and
accompanied by a social worker, the applicant and the Norwegian consul
came to the M.C.'s house to enforce the court order. However, neither
M.C. nor the children were present. M.C.'s mother, who lived in the
house, informed the bailiff that M.C. and the children “had left around
12 April 2001 for an unknown destination”. 47. Subsequently, the police
authorities in Poland and Norway were informed that M.C. had abducted
the children and was hiding them in Poland.
48. On 31 August 2001 the Norwegian Central Authority submitted to its
Polish counterpart details of M.C.'s bank account held in Warsaw into
which she was receiving her pension from Norway.
49. On 17 September and 14 November 2001 the Norwegian Central Authority
inquired of the Polish Central Authority about developments in the
search for the applicant's children but received no reply.
50. On 12 December 2001 the Norwegian Central Authority submitted to the
Polish Central Authority a third request for information about
developments in the applicant's case. The request was signed by two
senior officers of the Authority.
51. On 19 December 2001 the Polish Central Authority informed its
Norwegian counterpart that details of M.C.'s bank account had been
passed to the prosecution service, which was investigating this lead. It
also advised the Norwegian authorities about new legislation which since
27 September 2001 had made a guardian (kurator sądowy) responsible for
the enforcement of court decisions allowing applications for the return
of children. Therefore, on 14 December 2001 the Warsaw District Court
had allowed an application lodged by the applicant's lawyer and had
decided that a guardian should take the children away from M.C. when her
address was established.
52. On 6 April and 18 June 2002 the applicant wrote to the Chief Police
Commissioner in Warsaw asking for help in finding his children but did
not receive any reply.
E.
The return of A
53. On 9 July 2002 the applicant received a telephone call from S.C., at
that time aged 22, who was on holiday in Poland. S.C. informed him that
A was visiting M.C.'s aunt in Warsaw. The applicant immediately
contacted the police authorities in Norway and Poland while S.C. kept A
under observation.
54. On 10 July 2002 A. returned to the applicant's house in Norway.
55. On 9 September 2002 the Warsaw District Court asked an elementary
school in Warsaw whether B and C were attending it. On 28 October 2002
the court asked the local educational authority in Warsaw whether the
children were attending any of the schools managed by it.
56. On 20 December 2002 the Norwegian Minister of Justice sent a letter
to his Polish counterpart asking him to look into the applicant's case.
57. On 23 January 2003 a meeting of representatives of institutions
engaged in the search for the children took place in Warsaw. It was
organised by the Polish Ministry of Justice.
58. On 29 January 2003 the Warsaw District Court asked the Social
Security Board where M.C. was collecting her pension.
59. On 10 February 2003 the court requested two other elementary schools
whether B and C were attending them. On the same day it was informed by
the International Police Cooperation Bureau in Warsaw that M.C. had made
a phone call from Warsaw to Norway.
60. On 17 February 2003 the Warsaw District Prosecutor informed the
Warsaw District Court that M.C. had been arrested in Białystok, Poland
several months before.
61. On 18 February 2003 the Polish Ministry of Justice replied to the
letter of 20 December 2002. The reply referred to the conduct of the
proceedings in the applicant's case and the fact that M.C. was being
prosecuted on charges of forgery of documents and use of false identity.
She was under police supervision and was not allowed to leave Poland.
62. On 28 February 2003 the Białystok District Prosecutor informed the
Warsaw District Court that the prosecution service had lodged with the
Białystok District Court a bill of indictment against M.C. She was
charged with the forgery of documents as she had apparently adopted
false identities for herself and for B and C.
F.
The return of B and C
63. On 15 April 2003 a guardian took B and C away from M.C.
64. On 16 April 2003 the children were returned to the applicant. II.
RELEVANT DOMESTIC LAW
A.
Hague Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction
65. The Hague Convention was published in the Polish Official Journal on
25 September 1995. Article 7 of the Hague Convention reads, in so far as
relevant: “Central Authorities shall cooperate with each other and
promote cooperation amongst the competent authorities in their
respective States to secure the prompt return of children and to achieve
the other objects of this Convention. In particular, either directly or
through any intermediary, they shall take all appropriate measures: (a)
To discover the whereabouts of a child who has been wrongfully removed
or retained; (b) To prevent further harm to the child or prejudice to
interested parties by taking or causing to be taken provisional
measures; (c) To secure the voluntary return of the child or to bring
about an amicable resolution of the issues; (d) To exchange, where
desirable, information relating to the social background of the child;
(e) To provide information of a general character as to the law of their
State in connection with the application of the Convention; (f) To
initiate or facilitate the institution of judicial or administrative
proceedings with a view to obtaining the return of the child and, in a
proper case, to make arrangements for organizing or securing the
effective exercise of rights of access; (g) Where the circumstances so
require, to provide or facilitate the provision of legal aid and advice,
including the participation of legal counsel and advisers; (h) To
provide such administrative arrangements as may be necessary and
appropriate to secure the safe return of the child; (i) To keep each
other informed with respect to the operation of this Convention and, as
far as possible, to eliminate any obstacles to its application.”
Pursuant to Article 11: “The judicial or administrative authorities of
Contracting States shall act expeditiously in proceedings for the return
of children. If the judicial or administrative authority concerned has
not reached a decision within six weeks from the date of commencement of
the proceedings, the applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Central Authority of the
requesting State, shall have the right to request a statement of the
reasons for the delay. ...”
B.
The Polish Code of Civil Proceedings 1964
66. Article 1092 of the Code, which was repealed on 26 September 2001,
provided as follows: “When taking away a person who is a subject of
parental authority or who is in care, the bailiff shall be specially
careful, and shall do everything to protect such a person from physical
or moral harm. The bailiff shall request the assistance of social
services, or another institution tasked with this, or a court expert.”
THE LAW
I.
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
67. The applicant complained about a breach of Article 8 of the
Convention which provides: “1. Everyone has the right to respect for his
private and family life, his home and his correspondence. 2. There shall
be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety
or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”
A.
The parties' submissions
1.
The applicant
68. The applicant submitted that the Polish authorities failed to
reunite him swiftly with his children. An expert opinion requested on 6
December 1999 by the Warsaw District Court concerned the questions
already answered in an expert opinion obtained by the Inderøy District
Court and submitted to Polish authorities on 22 November 1999. Moreover,
the applicant averred that between July 2000 and 23 January 2003 the
Polish authorities had not taken the actions required of them under the
Hague Convention.
2.
The Government
69. The Government submitted that “domestic authorities dealing with the
applicant's case undertook all possible actions in order to preserve the
proper development of the applicant's relations with his children”. The
enforcement of a court order requiring the return of the applicant's
children was hindered by M.C. who hid the children. In conclusion, the
Government submitted that the facts of the case did not disclose a
violation of Article 8 of the Convention and asked the Court to declare
the case inadmissible as manifestly ill-founded.
B.
The Court's assessment
1.
The general principles
70. The Court reiterates that the essential object of Article 8 is to
protect the individual against arbitrary action by public authorities.
There are in addition positive obligations inherent in effective
“respect” for family life. In both contexts regard must be had to the
fair balance that has to be struck between the competing interests of
the individual and of the community as a whole; and in both contexts the
State enjoys a certain margin of appreciation (see Keegan v. Ireland,
judgment of 26 May 1994, Series A no. 290, p. 19, § 49).
71. In relation to the State's obligation to take positive measures, the
Court has repeatedly held that Article 8 includes a parent's right to
the taking of measures with a view to his being reunited with his child
and an obligation on the national authorities to facilitate such reunion
(see, among other authorities, Ignaccolo-Zenide v. Romania, no.
31679/96, § 94, ECHR 2000-I, and Nuutinen v. Finland, no. 32842/96, §
127, ECHR 2000-VIII; Iglesias Gil and A.U.I. v. Spain, no. 56673/00, §
49, ECHR 2003-V).
72. In cases concerning the enforcement of decisions in the sphere of
family law, the Court has repeatedly held that what is decisive is
whether the national authorities have taken all necessary steps to
facilitate the execution as can reasonable be demanded in the special
circumstances of each case (see Hokkanen v. Finland, judgment of 23
September 1994, Series A no. 299-A, § 53; Ignaccolo-Zenide, cited above,
§96; Nuutinen v. Finland, no. 32842/96, §128, ECHR 2000-VIII and
Sylvester v. Austria, nos. 36812/97 and 40104/98, § 59, 24 April 2003).
73. In cases of this kind the adequacy of a measure is to be judged by
the swiftness of its implementation, as the passage of time can have
irremediable consequences for relations between the child and the parent
who does not live with him or her. In proceedings under the Hague
Convention this is all the more so, as Article 11 of the Hague
Convention requires the judicial or administrative authorities concerned
to act expeditiously in proceedings for the return of children and any
inaction lasting more than six weeks may give rise to a request for a
statement of reasons for the delay (see Ignaccolo-Zenide, cited above, §
102).
74. The Court also held that although coercive measures against the
children are not desirable in this sensitive area, the use of sanctions
must not be ruled out in the event of unlawful behaviour by the parent
with whom the children live (see Ignaccolo-Zenide, cited above, § 106).
75. Lastly, the Court reiterates that the Convention must be applied in
accordance with the principles of international law, in particular with
those relating to the international protection of human rights (see
Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and
44801/98, § 90, ECHR 2001-II, and Al-Adsani v. the United Kingdom [GC],
no. 35763/97, § 55, ECHR 2001-XI). Consequently, the Court considers
that the positive obligations that Article 8 of the Convention lays on
the Contracting States in the matter of reuniting a parent with his or
her children must be interpreted in the light of the Hague Convention of
25 October 1980 on the Civil Aspects of International Child Abduction,
all the more so where the respondent state is also a party to that
instrument (see Ignaccolo-Zenide, cited above, § 95)
2.
The application of the general principles to the above case
76. The Court firstly notes that it was common ground that the tie
between the applicant and his children came within the scope of family
life within the meaning of Article 8 of the Convention.
77. That being so, it must be determined whether there has been a
failure to respect the applicant's family life. In the light of the
above principles, what is decisive in this case is whether the Polish
authorities took all the necessary adequate steps to facilitate the
enforcement of the decision of 2 March 2000 ordering the return of the
children to the applicant.
78. The swiftness of the implementation of a measure was essential as
the applicant had made an urgent application to the courts, the purpose
of which was to protect the individual against any damage that might
result from the lapse of time.
79. Turning to the particular circumstances of the case, the Court notes
that in the proceedings dealing with the applicant's request for return
the children, it took the District Court almost two months, between 6
December 1999 and 2 February 2000, to obtain a six-page expert opinion
(see paragraphs 22 and 26 above). What is more, between 2 March and 30
May 2000 no hearing was held as the case lay apparently dormant before
the appellate court (see paragraphs 28 and 31 above). The Court
considers that no satisfactory explanation has been put forward to
justify those delays.
80. With regard to the enforcement stage the Court also discerns several
periods of inactivity, in particular after the first unsuccessful
enforcement attempt of 19 April 2001 when M.C. changed her whereabouts
with the aim of defying the execution of the return order. Thereafter,
until 9 July 2002, when the first child was found as a result of
information provided by S.C., the authorities took only one procedural
decision, on 14 December 2001 (see paragraphs 46, 51 and 53 above). It
appears that during that time the authorities failed to take any steps
to facilitate execution of the order. In particular, they did not act on
the information given on 31 August 2001 by the Norwegian Central
Authority which provided them with details of M.C.'s bank account held
in Warsaw where she was receiving her pension from Norway. Instead, but
only on 29 January 2003, the Warsaw District Court asked the Social
Security Board where M.C. had been collecting her pension. Moreover,
there is no explanation for the periods of inactivity between 10 July
and 9 September 2002 and between 28 October 2002 and 23 January 2003.
81. The Court considers that these periods of inactivity ranged from
eight to twelve weeks and in the particular circumstances of the case
they must be regarded as important ones.
82. The Government maintained that the enforcement of the order was
hindered by M.C who went into hiding with the children. In this
connection the Court observes that no measure was taken by the
authorities to prevent this from happening. The domestic courts ignored
warnings that M.C. might hide the children made by the applicant at the
hearing held on 2 March 2000 and by M.C.'s lawyer at the hearing of 4
July 2000. The bailiff also failed to speed up the enforcement of the
court's order to remove the children by force scheduled for 19 April
2001 despite the statement made by the District Committee that they
would warn M.C. about it.
83. Having regard to the foregoing, and notwithstanding the respondent
State's margin of appreciation in the matter, the Court concludes that
the Polish authorities failed to make adequate and effective efforts to
enforce the applicant's right to the return of his children and thereby
breached his right to respect for his family life, as guaranteed by
Article 8. There has consequently been a violation of Article 8 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
84. The applicant complained that the unreasonable length of the
proceedings concerning the return of his children breached Article 6 § 1
which, in so far as relevant, provides: “In the determination of his
civil rights and obligations ..., everyone is entitled to a ... hearing
within a reasonable time by [a] ... tribunal...”
A.
The parties' submissions
1.
The applicant
85. According to the applicant, the length of the proceedings was in
breach of the “reasonable time” requirement laid down in Article 6 § 1
of the Convention. He submitted that in August 1999 he had lodged his
request under the Hague Convention which had as its purpose the prompt
return of the abducted children. However, the Polish authorities failed
to swiftly reunite him with his children and overlooked what was at
stake in the proceedings.
86. The applicant pointed to several periods of inactivity for which the
authorities conducting the proceedings should be held responsible. In
particular, it took the Regional Court twelve weeks to dismiss MC's
appeal against the decision of 2 March 2000. Moreover, in the subsequent
enforcement proceedings the bailiff failed to act with the exceptional
diligence required in such cases, particularly after M.C. and her lawyer
had declared at the hearing on 4 July 2001 that the children would be
hidden.
2.
The Government
87. The Government disagreed with the applicant and submitted that the
length of the case was reasonable. The overall length of the proceedings
of three years and over seven months could be explained by the
circumstances of the case, in particular, by its complexity. In the
Government's opinion, proceedings concerning the abduction of children
normally raise very complex issues of law and fact.
88. The Government acknowledged that the applicant had not contributed
to the length of the proceedings. It was M.C. who bore the
responsibility for prolongation of the proceedings as she had taken many
legal and illegal steps in order to prevent the return of the children
to their father.
89. As regards the conduct of the domestic authorities, the Government
submitted that there were no significant periods of inactivity
attributable to the domestic authorities. In the Government's opinion
the courts dealing with the request to return the children to Norway
acted with due diligence and speedily. They admitted that certain delays
had occurred at the enforcement stage. However, the authorities, in
particular the court's bailiff, could not be held responsible for those
delays.
B.
The Court's assessment
90. The Court reiterates that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of the
case and with reference to the criteria established by its case-law,
particularly the complexity of the case, the conduct of the applicant
and of the relevant authorities and what was at stake for the applicant
in the dispute (see, among many other authorities, Frydlender v. France
[GC], no. 30979/96, § 43, ECHR 2000-VII, Humen v. Poland [GC], § 60, no.
26614/95, 15 October 1999).
91. The Court observes that the proceedings started on 31 August 1999
when the applicant filed his request under the Hague Convention. They
ended on 16 April 2003 when the domestic decision was finally enforced
with respect to all the children (see paragraphs 16 and 64 above).
Therefore, the proceedings at issue lasted three years, seven months and
sixteen days.
92. The Court notes that while the case was certainly complicated by the
behaviour of M.C., the overall delay was caused by the periods of
inactivity which have already been analysed by the Court in the context
of Article 8 (see paragraphs 79 to 82 above). They have to be attributed
to the domestic authorities.
93. The Court shares the applicant's opinion that, in view of what was
at stake for the applicant and the irreversible character of the
measures concerned, the competent national authorities were required by
Article 6 § 1 to act with exceptional diligence in ensuring the progress
of the proceedings (see, Johansen v. Norway, judgment of 7 August 1996,
Reports of Judgments and Decisions 1996-III § 88). The Court finds that
the authorities failed to display such diligence.
94. Finally, the Court notes that it is common ground that the applicant
did not contribute to the length of the proceedings. It sees no reason
to hold otherwise.
95. Consequently, the Court considers that, taking into account what was
at stake in the proceedings and the requirement of acting with
exceptional diligence, the overall period of the proceedings in the
instant case exceeded a reasonable time. Accordingly, there had been a
violation of Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
96. Article 41 of the Convention provides: “If the Court finds that
there has been a violation of the Convention or the Protocols thereto,
and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary,
afford just satisfaction to the injured party.”
A.
Damage
97. The applicant requested a total amount of 853,683 Norwegian kroner (NOK)
equivalent to 103,000 euros (EUR), on 16 April 2004, the date on which
the claims were submitted, in respect of pecuniary damage. This sum
covered loss of wages since September 2001, when the applicant had
stopped working, until December 2013, when the youngest child would
reach majority.
98. As to non-pecuniary damage, the applicant claimed NOK 400,000,
equivalent of EUR 48,300, by way of compensation for suffering endured
by him and his children.
99. The Government submitted that the applicant's claim in relation to
non-pecuniary damage, with respect to the loss of hypothetical income,
did not have a casual link with the alleged violations of the
Convention. With regard to non-pecuniary damage, the Government argued
that the sum claimed by the applicant was excessive. They invited the
Court to rule that the finding of a violation constituted in itself
sufficient just satisfaction for the non-pecuniary damage sustained by
the applicant.
100. With regard to pecuniary damage the Court finds that there is no
causal link between the damage claimed and the violation found. It
therefore dismisses this claim.
101. The Court considers, however, that the applicant must indeed have
sustained non-pecuniary damage and that sufficient just satisfaction
would not be provided solely by a finding of a violation of the
Convention. Having regard to the circumstances of the case and making
its assessment on an equitable basis as required by Article 41, it
awards the applicant EUR 10,000 under this head.
B.
Costs and expenses
102. The applicant claimed a total amount of NOK 105,915, equivalent to
EUR 12,850, by way of costs and expenses broken down as follows: (i) NOK
7,860 for costs of translation and bailiff proceedings, including the
equivalent of EUR 560 for a private investigator in Israel and Poland;
(ii) NOK 49,690, for legal expenses paid to his lawyer who represented
him in the Court proceedings, from which the sum of EUR 792 already
received by way of legal aid from the Council of Europe had been
deducted; (iii) NOK 7,086 for telephone and postal costs; (iv) NOK
41,280 for travel costs of ten trips between Norway and Poland for him
and his children in connection with the enforcement proceedings and for
the purpose of bringing his children to his home in Norway.
103. The Government submitted that the costs and expenses claimed by the
applicant were partly irrelevant as there was no indication that they
were incurred with the purpose of preventing, or obtaining redress for
the violation found.
104. The Court considers that the costs and expenses relating to the
domestic proceedings, as far as they concern the enforcement proceedings
found to give rise to a violation of the Convention (see paragraphs 83
and 95 above) and the costs of the Strasbourg proceedings were incurred
necessarily. They must accordingly be reimbursed in so far as they do
not exceed a reasonable level (see Ignaccolo-Zenide, cited above, §
121). The Court awards the applicant the sum of EUR 12,000 under the
head of costs and expenses.
C.
Default interest
105. The Court considers it appropriate that the default interest should
be based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.
Holds that there has been a violation of Article 8 of the Convention;
2.
Holds that there has been a violation of Article 6 § 1 of the
Convention;
3.
Holds (a) that the respondent State is to pay the applicant, within
three months from the date on which the judgment becomes final according
to Article 44 § 2 of the Convention, the following amounts to be
converted into Norwegian kroner at the rate applicable at the date of
settlement: (i) EUR 10,000 (ten thousand euros) in respect of
non-pecuniary damage; (ii) EUR 12,000 (twelve thousand euros) in respect
of costs and expenses; (iii) any tax that may be chargeable on the above
amounts; (b) that from the expiry of the above-mentioned three months
until settlement simple interest shall be payable on the above amounts
at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4.
Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 13 September 2005, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court. Michael O'Boyle Nicolas
Bratza Registrar President
H.N. v. POLAND JUDGMENT H.N. v. POLAND JUDGMENT |
