Case of European Court of Human Rights, January 14, 2020 (case RINAU v. LITHUANIA)

Defense:LITHUANIA
Resolution Date:January 14, 2020
SUMMARY

Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 -... (see full summary)

 
FREE EXCERPT

SECOND SECTION

CASE OF RINAU v. LITHUANIA

(Application no. 10926/09)

JUDGMENT

Art 8 • Respect for family life • International child abduction • Authorities’ failure to act with required fairness and promptitude • Political pressure on courts and child-care authorities • Respondent State providing legal and financial support to abducting parent

STRASBOURG

14 January 2020

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 Rinau v. Lithuania,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,Marko Bošnjak,Valeriu Griţco,Egidijus Kūris,Ivana Jelić,Arnfinn Bårdsen,Saadet Yüksel, judges,and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 3 December 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 10926/09) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Michael Rinau (“the first applicant”) and a Lithuanian and German national, Ms Luisa Rinau (“the second applicant”), on 24 February 2009.

  2. The applicants were represented by Ms N. Bümlein, a lawyer practising in Berlin. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

  3. The applicants alleged mainly that the Lithuanian authorities’ failure to act in a timely fashion and in application of Council Regulation (EC) No. 2201/2003 and the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction constituted a violation of their right for respect for their family life and a breach of Article 8 of the European Convention on Human Rights. The applicants also complained that the decision-making in their case had been politicised and that this was in breach of Article 6 § 1 of the latter Convention.

  4. On 9 June 2016 the application was communicated to the Government. At the same time, the German Government were invited to intervene as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), but they did not express their intention to do so.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The first applicant was born in 1969. The second applicant is his daughter; she was born in 2005 (also see paragraph 8 below). They live in Bergfelde, Germany.

  6. In July 2003 the first applicant married a Lithuanian citizen, I.R. They lived in Bergfelde, Germany, where their marriage was registered. The spouses also chose German law to be applicable to their marriage.

  7. From a previous marriage I.R. had an older son, E.M., who was born in 1992.

  8. On 11 January 2005 a daughter, Luisa (the second applicant), was born to the couple in Germany. Parental responsibility was exercised jointly by both parents. In the course of March 2005 the spouses began living separately. The child remained with her mother but maintained frequent contact with her father. At a later stage, divorce proceedings were initiated by the first applicant before the Oranienburg District Court (Amtsgericht Oranienburg) in Germany.

  9. In May 2005 the second applicant was issued with a German passport.

    1. Proceedings under the Hague Convention on the Civil Aspects of International Child Abduction

  10. On 21 July 2006, the first applicant agreed that his wife should take their daughter to Lithuania for two weeks’ holiday, on condition that she return to Germany by 6 August 2006.

  11. When the child and mother did not return to Germany, the first applicant started court proceedings in Germany. An arrest warrant in respect of I.R. was issued by the German authorities.

  12. On 14 August 2006 the Oranienburg District Court terminated the mother’s joint custody of their daughter and awarded provisional custody to the applicant until divorce proceedings were completed. The German court also granted the first applicant the exclusive right to decide questions relating to his daughter’s passport.

  13. That decision was upheld by the Brandenburg Regional Court (Oberlandesgericht) on 11 October 2006, which dismissed an appeal by I.R.

  14. On 30 October 2006 the first applicant asked the Klaipėda Regional Court in Lithuania for a permit allowing him to take his daughter back to Germany. He relied on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (see paragraph 145 below), and also on Council Regulation (EC) No. 2201/2003 (also known as “the Brussels II bis Regulation”, hereafter “Regulation (EC) No. 2201/2003”; for the text see paragraph 150 below).

  15. On 15 November 2006 the State Child Rights and Adoption Service under the Ministry of Social Security and Labour (Valstybės vaiko teisių apsaugos ir įvaikinimo tarnyba prie Socialinės apsaugos ir darbo ministerijos; hereafter “the State Child Rights and Adoption Service”), which is also the “Central Authority” within the meaning of Article 53 of Regulation (EC) No. 2201/2003 (see paragraphs 134 and 150 below), announced its conclusion regarding the second applicant’s return. The child care authority noted that the girl had lived in Germany until being taken to Lithuania and that I.R. had kept the child in Lithuania unlawfully. The child care specialists had talked to I.R., but could not persuade her to return the child to Germany and had concluded that the child had not yet reached an age at which it would be reasonable to hear her opinion. The child care specialists noted, on the one hand, that the child had been examined, on I.R.’s initiative, by child development specialists at Vilnius University Hospital, and those specialists had considered that separation of the child from her mother and brother at that moment would negatively affect the girl’s emotional health and potentially cause problems for her development. On the other hand, there was no proof that the first applicant would not be capable of taking care of his daughter or that any other kind of harm might be caused to her upon her return to Germany. The child care specialists also pointed out that, pursuant to Article 11 § 4 of Regulation (EC) No. 2201/2003, “a court cannot refuse to return a child on the basis of Article 13 (b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return” (see paragraph 150 below). Accordingly, even if the court were to establish that there was a substantial risk that the girl would sustain psychological harm if returned to Germany, it should in addition verify whether German institutions would take appropriate measures to protect the girl’s interests after her return. It also transpires from the documents in the case that the representatives of the State Child Rights and Adoption Service reiterated that view during the court hearing.

  16. I.R., who was represented by a lawyer, V.Š., admitted before the Klaipėda Regional Court that it was definitely not her intention to return to Germany. Neither did she agree that the second applicant should be returned there but argued that her daughter should stay with her in Lithuania because a mother’s care was very important for a child. The first applicant was also present at that hearing, together with a lawyer.

  17. By a ruling of 22 December 2006, the Klaipėda Regional Court refused the first applicant’s request. It held that because of the girl’s bond with her mother I.R. and brother E.M., her return to Germany ‒ where her mother might be arrested, even if only temporarily ‒ could cause the child serious psychological harm. As to E.M., he had a psychological ailment and refused to return to Germany, and I.R. could not leave him alone in Lithuania. For the first-instance court, this constituted grounds not to return the second applicant under Article 13 (b) of the Hague Convention. The Klaipėda Regional Court considered that the second applicant’s habitual place of residence, and thus her familiar and safe environment ‒ which was Lithuania ‒ could be changed only if there was a court decision regarding her custody.

  18. It transpires from the documents before the court that in January 2007 the second applicant was issued with a permit granting her permanent residence in Lithuania. That same month I.R. declared her daughter’s place of residence to be Klaipėda, Lithuania.

  19. On 15 March 2007 the Court of Appeal granted an appeal lodged by the first applicant and quashed the Klaipėda Regional Court’s decision. The Court of Appeal noted that although I.R., who at that stage was represented by a lawyer K.L., had taken her daughter to Lithuania lawfully − because she had the father’s agreement − her choice not to return the child to Germany and instead to keep her in Lithuania was unlawful both under Article 3 of the Hague Convention and under Article 2 § 11 of Regulation (EC) No. 2201/2003. Such unlawful retention of the child in a place which was not her habitual place of residence breached the custody rights of the first applicant, who had taken care of the second applicant before she was taken to Lithuania and who intended to continue taking care of her in future. The first applicant noted that on 2 January 2007 the criminal proceedings against I.R. had been discontinued in Germany and that, since those proceedings had been brought on the basis of a private prosecution, they could not be repeatedly reopened.

    The Court of Appeal pointed out that since the criminal proceedings instituted against I.R. for unlawful retention of the child had been discontinued in Germany, there was no reason to believe that, if returned to Germany, the child would be separated from her mother. The Court of Appeal also noted that the proceedings in the Lithuanian courts were concerned only with the return of the child, who was being retained...

To continue reading

REQUEST YOUR TRIAL