Specifics of the prosecutor’s participation in proceedings for considering applications for the return of a child (on the exercise of access rights to him) on the basis of the 1980 Convention on the Civil Aspects of International Abduction of Children

I. Golovko
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Abstract

This article examines the problem of the exercise of parental rights (guardianship rights) in relation to a minor. At present, there are quite numerous disputes between parents, other persons entitled to rights in relation to minors, about the place of residence of the child and about with whom he will live. Controversial issues are resolved both out of court proceedings and in court. The Code of Civil Procedure of the Russian Federation establishes the powers of the prosecutor to apply to the court in cases of this category and to intervene to give an opinion.The purpose of the article is to present the results of a study of the peculiarities of the participation of a prosecutor in court proceedings in cases of the return of a child (on the exercise of access rights in relation to him). The tasks were to generalize judicial practice, identify violations in the consideration of cases by the courts, establish the specifics of the participation of the prosecutor in the proceedings in cases of this category. The author analyzes the issues of the prosecutors competence at the pre-trial stage of resolving disputes and the measures that he has the right to initiate in defense of the violated rights of the parent (another person who applied to the prosecutors office) in the administrative and judicial order. In connection with the consolidation in the Code of Civil Procedure of the Russian Federation, the right of the prosecutor to initiate proceedings in a court of general jurisdiction in cases of the considered category, attention is paid to the issues of determining jurisdiction and the subject of proof, the time frame for going to court, the time period for the proceedings, the time period for challenging the court decision. The emphasis is also placed on the implementation of the right of the prosecutor to intervene in the case to give an opinion. On the basis of the provisions of the 1980 Hague Convention, the results of practice, the generalization of the reasons for the cancellation of the decisions of the courts, the conclusions on the most significant aspects that need to be paid attention are substantiated. It is concluded that the judicial practice of considering cases of this category is being formed and is currently not free from violations of the requirements of the law. Attention is drawn to the conclusions of the Supreme Court of the Russian Federation based on the materials of the generalization of practice.
检察官根据1980年《关于国际诱拐儿童民事问题的公约》参与审议遣返儿童申请(行使接触儿童的权利)的诉讼程序的具体情况
本文探讨了未成年人行使父母权利(监护权)的问题。目前,在父母、享有与未成年人有关的权利的其他人、关于儿童的居住地和他将与谁一起生活的问题上,存在着相当多的争端。有争议的问题在法庭内外都能得到解决。《俄罗斯联邦民事诉讼法》规定,检察官有权在这类案件中向法院提出申请,并进行干预,提出意见。这篇文章的目的是介绍一项研究的结果,该研究是关于检察官参与儿童返回案件的法庭诉讼程序的特点(关于行使与儿童有关的接触权)。其任务是概括司法实践,查明法院审理案件时的违反情况,确定检察官参与这类案件的诉讼程序的具体情况。作者分析了检察官在审前纠纷解决阶段的权限问题,以及他有权在行政和司法秩序中为被侵犯的父母(向检察院提出申请的另一人)的权利提起辩护的措施。关于巩固《俄罗斯联邦民事诉讼法》中关于检察官对所审议的一类案件在具有一般管辖权的法院提起诉讼的权利,注意了确定管辖权和举证主题、上法庭的时间范围、诉讼的时间期限、对法院判决提出质疑的时间期限等问题。重点还放在检察官介入案件并发表意见的权利的落实上。在1980年《海牙公约》规定的基础上,对实践的结果、撤销法院判决的理由的概括、对需要注意的最重要方面的结论进行了论证。结论是,审议这类案件的司法惯例正在形成,目前还存在违反法律要求的情况。提请注意俄罗斯联邦最高法院根据惯例概括材料作出的结论。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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