The applicant (wife), her husband, and their children lived in Austria and held dual Austrian and Kosovar citizenship. After marriage problems arose between the couple, the husband took the children away from the wife while they were in Kosovo and kept them away from her. The husband’s family wanted to resolve the matter according to Albanian tradition, causing the wife to fear that the children would stay with the father. She thus initiated legal proceedings for the children’s return to Austria. Pursuant to The Hague Convention on the Civil Aspects of International Children Abduction, the Austrian Ministry of Justice requested the Kosovar Ministry of Justice to assist in the children’s return, and the Kosovar authorities initiated proceedings in the country’s courts for such an order. The District Court held hearings in the presence of the husband but without the wife or prosecutor, and ruled for the husband, finding that no abduction had taken place. The Supreme Court quashed the decision and remanded the case for retrial. Following retrial, the District Court again ruled that, under The Hague Convention, returning the children was unnecessary, as it would have a negative impact on the children because they had developed a strong emotional bond with their father, they were attending school in Kosovo, and the couple had marital problems. The Supreme Court affirmed, finding the return of the children might cause them psychological damage. The wife then filed a request for repetition of procedure, arguing that she and the prosecutor were not given the opportunity to participate in the session in which the District Court reviewed the request to return the children. The Supreme Court rejected the request, stating that the procedural parties were the Ministry of Justice and the husband, not the wife, and that the participation of the prosecutor was not legally obligatory. The wife appealed to the Constitutional Court, alleging that her rights guaranteed under Article 31 of the Constitution of Kosovo (Right to Fair and Impartial Trial), and under Article 6 (Right to Fair Trial) of the European Convention on Human Rights and Fundamental Freedoms, had been violated. The Constitutional Court held that by not being present at the session, the wife was unable to refute her husband and was deprived of the possibility of convincing the District Court that the children should be returned. The wife was thus placed at a substantial disadvantage vis-à-vis her opponent, in violation of the principle of equality of arms, which is one aspect of the right to fair trial under European Court of Human Rights case law. Finding the wife’s right to a fair trial violated, the Constitutional Court accordingly invalidated the Supreme Court’s decisions and ordered the District Court to repeat the proceedings and invite the wife to participate. (Also available in Srpski, English, and Türkçe.)
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