Hotărârea CEDO (Marea Cameră) în cauza X împotriva Letoniei (cererea nr. 27853/09)

Extrasele exacte din hotărâre la care trimit ghidurile.

1. par. 107 · textul original, în limba engleză

   107. In consequence, the Court considers that Article 8 of the Convention imposes on the domestic authorities a particular procedural obligation in this respect: when assessing an application for a child’s return, the courts must not only consider arguable allegations of a “grave risk” for the child in the event of return, but must also make a ruling giving specific reasons in the light of the circumstances of the case. Both a refusal to take account of objections to the return capable of falling within the scope of Articles 12, 13 and 20 of the Hague Convention and insufficient reasoning in the ruling dismissing such objections would be contrary to the requirements of Article 8 of the Convention and also to the aim and purpose of the Hague Convention. Due consideration of such allegations, demonstrated by reasoning of the domestic courts that is not automatic and stereotyped, but sufficiently detailed in the light of the exceptions set out in the Hague Convention, which must be interpreted strictly (see Maumousseau and Washington, cited above, § 73), is necessary. This will also enable the Court, whose task is not to take the place of the national courts, to carry out the European supervision entrusted to it.

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2. par. 116 · textul original, în limba engleză

   116. Under Article 13, first paragraph, (b) of the Hague Convention, the courts examining the return request are not obliged to grant it “if the person, institution or other body which opposes its return establishes that ... there is a grave risk”. It is the parent who opposes the return who must, in the first place, adduce sufficient evidence to this effect. In the instant case, it was therefore for the applicant to provide sufficient evidence to substantiate her allegations, which, moreover, had to concern the existence of a risk specifically described as “grave” by Article 13, first paragraph, (b). Furthermore, the Court notes that while the latter provision is not restrictive as to the exact nature of the “grave risk” – which could entail not only “physical or psychological harm” but also “an intolerable situation” – it cannot be read, in the light of Article 8 of the Convention, as including all of the inconveniences necessarily linked to the experience of return: the exception provided for in Article 13, first paragraph, (b) concerns only the situations which go beyond what a child might reasonably bear. The applicant fulfilled her obligation by submitting a psychologist’s certificate concluding that there existed a risk of trauma for the child in the event of immediate separation from her mother. Furthermore, she had also submitted that T. had criminal convictions and referred to instances of ill-treatment by him. It was therefore for the Latvian courts to carry out meaningful checks, enabling them to either confirm or exclude the existence of a “grave risk” (see B. v. Belgium, no. 4320/11, §§ 70-72, 10 July 2012).

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3. par. 118 · textul original, în limba engleză

   118. As to the need to comply with the short time-limits laid down by the Hague Convention and referred to by the Riga Regional Court in its reasoning (see paragraph 25 above), the Court reiterates that while Article 11 of the Hague Convention does indeed provide that the judicial authorities must act expeditiously, this does not exonerate them from the duty to undertake an effective examination of allegations made by a party on the basis of one of the exceptions expressly provided for, namely Article 13 (b) in this case.

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