Judgment 30.3.2023 [Section V]
Respect for family life
Reasoned decision enforcing return order of applicant’s child to the USA under the Hague Convention in compliance with Article 8 procedural requirements and with child’s best interests being primary consideration: no violation
RULE 80 OF THE RULES OF COURT
Request for revision of a judgment
RULE 28 OF THE RULES OF COURT
Inability to sit, withdrawal or exemption
New fact of decisive influence concerning participation in Court proceedings of newly elected national judge involved in constitutional proceedings closely linked to those examined in Court’s original judgment: request for revision admissible; judgment revised in its entirety
Facts – In its judgment X v. the Czech Republic (64886/19, 12 May 2022) the Court held, unanimously, that there had not been a breach of Article 8 on account of the decision taken by the Czech courts to enforce the applicant’s daughter’s return to the United States of America under the Hague Convention on the Civil Aspects of International Child Abduction.
On 11 August 2022 the applicant asked for referral of the case to the Grand Chamber, claiming, inter alia, that there had been a breach of Rule 28 of the Rules of Court. She submitted that Ms Kateřina Šimáčková, the judge elected in respect of the Czech Republic on 28 September 2021, should not have participated in the examination of the case because, in her previous capacity as a member of the Czech Constitutional Court, she had presided over the Chamber of that court which had dismissed her constitutional appeal concerning the suspension of the enforcement of the return order by a decision of 7 April 2020.
On 11 October 2022 a Chamber of the former Fifth Section ruled that the applicant’s request for referral should be considered as being in substance a request for revision within the meaning of Rule 80 of the Rules of Court.
In the meanwhile, pending consideration of the revision request, Judge Šimáčková recused herself pursuant to Rule 28 § 2 (b) of the Rules of Court. Pursuant to Rule 29, the President of the Chamber appointed an ad hoc national judge.
The request for revision:
At the outset, the Court noted that the Court’s assessment in its judgment of 12 May 2022 had only concerned the proceedings for the enforcement of the return order. Although the additional proceedings brought by the applicant for the suspension of the execution of that order had been noted in the Chamber judgment, it was only at the time of the applicant’s request to the Grand Chamber that she had informed the Court that her constitutional appeal in those proceedings had been dismissed by the Constitutional Court, presided over by Judge Šimáčková, on 7 April 2020.
The Court then examined the conditions set out in Rule 80 for a revision request to be accepted and found that they had all been satisfied.
(a) Whether the fact challenged by the applicant “was unknown to the Court” when the judgment was delivered – Since the applicant had not informed the Court of the Constitutional Court’s decision of 7 April 2020 at any time prior to the Chamber’s judgment of 12 May 2022 and no other information about it had been in the material before the Chamber, this admissibility condition had been met.
(b) Whether the new fact “could not reasonably have been known” to the requesting party – Judge Šimáčková’s potential participation in the examination of the applicant’s case before the Court in her role as judge elected in respect of the Czech Republic could not reasonably have become known to the applicant before the date of her election. From 13 December 2021, when she had taken up her functions at the Court and information about that had been published on the Court’s website, the applicant could have informed the Court of her misgivings regarding Judge Šimáčková’s potential participation in the examination of her case but had failed to do so.
Nonetheless, while an applicant who was aware of facts that were relevant to the examination of his or her case should bring them to the attention of the Court as soon as possible, under Rule 28, which aimed to ensure the rigorous implementation of the principle of judicial impartiality, the inability of a judge to sit for any reason, including because he or she had previously acted in the case in another capacity, was not dependent on the positions of the parties to the proceedings but on the existence of the grounds referred to in Rule 28 § 2. Indeed, the responsibility for the implementation of Rule 28 and, in particular, of the principle of objective impartiality, could not clearly be left to the sole initiative of the parties.
Consequently, a request for revision based on an allegation that there existed impediments to a judge participating in the case could not, in principle, be rejected solely on the basis that the requesting party had not informed the Court of his or her doubts before the adoption of the judgment the revision of which was being sought.
(c) Whether the new fact might by its nature have a “decisive influence” – In the very specific circumstances where the fact at the origin of the revision request was related to the alleged lack of impartiality of a judge who had taken part in the examination of the case, the “decisive influence” condition boiled down to the question whether any of the grounds under Rule 28 § 2 existed. If any such ground existed, that condition should be considered to have been met, without it being necessary to speculate on whether the specific ground for withdrawal had actually affected the outcome of the case. Any other approach would not sufficiently safeguard the principle of impartiality.
One of the grounds expressly listed in Rule 28 § 2 was having previously acted “in the case” in another capacity. While the domestic proceedings that had led to the Constitutional Court’s decision of 7 April 2020 not to suspend the execution of the enforcement order, had been separate from the enforcement proceedings analysed by the Court in its judgment of 12 May 2022, there had been a close link between them in the Court’s assessment in that judgment. The fact that the above decision, in which Judge Šimáčková had participated, had not been mentioned in the Court’s judgment and had been delivered after the facts which formed the subject matter of the application was not sufficient to dissipate all doubts that could exist regarding the Court’s objective impartiality.
The possibility of revision was an exceptional procedure, in so far as it called into question the final character of judgments of the Court. Requests for revision of judgments were therefore to be subjected to strict scrutiny, while legal certainty must prevail where doubts remained as to whether or not a new fact did actually have a decisive influence on the original judgment. However, the imperative to apply rigorously the principle of objective impartiality called for the revision of the Court’s judgment where grounds for a judge’s inability to sit had been shown to exist, even if it was doubtful whether the participation of that judge might have influenced the original judgment.
Conclusion: request for revision declared admissible and judgment to be revised in its entirety (unanimously).
Article 8: The Court, having examined afresh the applicant’s complaints and all the observations submitted by the parties, adopted a revised judgment. It held that in the circumstances of the case the examination by the domestic courts of the claims made by the applicant in the enforcement proceedings had satisfied the procedural requirements imposed by Article 8 and that the decision to enforce her daughter’s return had been sufficiently reasoned. The Court was satisfied that the domestic courts, within their margin of appreciation, had struck a fair balance between the competing interests at stake, particularly taking into account that the best interests of the child must be the primary consideration.
Conclusion: no violation (unanimously).
(See also McGinley and Egan v. the United Kingdom (revision), 21825/93 and 23414/94, 9 June 1998; Bugajny and Others v. Poland (revision), 22531/05, 15 December 2009; Mindek v. Croatia (revision),