Nemesis and the Rule of Law in Belarus
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Nicolas

GR 2020.08.04 Legal Analysis of The Hague Case conducted by Attorney Ms. Martha Poni

The Hague Case – A Legal Analysis conducted by
Attorney Ms. Martha Poni

ZABARA A.A. Deputy Chairman of the Supreme Courtv

ZABARA Andrei Alexandrovich (Андрей Александрович Забара)
Deputy Chairman of the Supreme Court of Belarus

Analysis of The Hague Case

Introduction:

Nicolaos Cheropoulos, a resident of Sweden holding Swedish and Greek citizenship, lived with Liudmila Arkadyevna Trafimovich, a Belarusian national, in Stockholm, Sweden. From their relationship, they had two children, Anthoula, who was born in Sweden on 08.06.2012, and Alexandra, who was born in Sweden on 01.04.2015. The custody of the children was exercised jointly by both parents. On 18.04.2017, Liudmila A. Trafimovich suddenly and without any knowledge of Nicolaos Cheropoulos, illegally moved the children from Sweden to Belarus.

Specifically, on the morning of the 18th of April, 2017, the children went to Kindergarten with their father as usual, and he then went to work. Mr. Cheropoulos came home early in the afternoon, and he did not find anyone at home. Anxious, he searched in vain for the children and for Ms. Trafimovich, and after a short time, he found out that the mother picked up the children from Kindergarten earlier than usual, claiming that she was taking them to their pediatrician, which, however, was not true. He also found out that the children’s passports were missing from their home, and he immediately contacted the police, who started to search for the children and for Ms. Trafimovich.

Four days later, the police sent Mr. Cheropoulos a photo of a stroller that had been abandoned at the airport, which the father immediately recognized to be little Alexandra’s stroller. After a few more days, the father learned that the children and their mother had left for Belarus. This was when his Golgotha began, as we now face an international case of Child Abduction caused by their mother.

States involved:

Sweden and Belarus – Both countries are parties to the 1980 Hague Convention
on the Civil Matters of International Child Abduction.

A brief history of the father’s actions:

The father, Nicolaos Cheropoulos, immediately (on 25-04-2017) submitted an application to the competent Central Authority of Sweden asking for the return of the children in accordance with the provisions of Article 8 of the 1980 Hague Convention, which then was transmitted to the courts of Belarus. Belarusian courts, however, breached and refused to implement the 1980 Hague Convention and did not return the children to Sweden.

Despite the fact that Belarus is a Contracting State, this country blatantly violated international law, the parental and paternal rights of Mr. Nicolaos Cheropoulos, and the human rights of the children and the father. In fact, the father exhausted all legal remedies and even reached the Supreme Court of Belarus, which denied his rights. In addition, the Belarusian judicial authorities ruled completely illegally and in the absence of the father on the issue of child custody, without him ever being legally notified about the date of the first hearing of the case (in violation of Article 15 of the Convention of 15-11-1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters).

And, of course, the Belarusian courts also breached Article 16 of the Hague Convention because they did not have the right to take any court decision on children’s custody before it was established that there was no case of return of the children and knowing that a final and irrevocable decision had already been issued by the Swedish courts, which were the only competent ones, and which granted the custody of the children to the father.

# First Judgment of the judicial authorities of Belarus (23-08-2017 Court of 1st Instance)

As previously mentioned, the mother, L.A. Trafimovich, moved the children from Sweden to Belarus on 18-04-2017 illegally and without any knowledge or consent of their father, Nicolaos Cheropoulos. The father reacted as soon as he learned from the police into which country the children were transferred, and on 25-04-2017, he submitted an application to the competent Central Authority of Sweden asking for the return of the children in accordance with Article 8 of the 1980 Hague Convention and within the time limit specified in Article 12.

Father’s request to return the children to their place of permanent residence in Sweden in line with The Hague Convention of 1980 has been submitted to the Oktyabrsky District Court of the City of Minsk, which, however, rejected this request on 23-08-2017, claiming that it had no jurisdiction to adjudicate in this case. The Belarusian Court also stated that the father had the right to appeal this decision in the Minsk City Court.

Decision text attached hereto:

2017.08.23 EN Decision-Decree from the Court to reject my Hague Claim submitted 28-06-2017

2017.08.23 RU Decision-Decree from the Court to reject my Hague Claim submitted 28-06-2017

# Second Judgment of the Judicial Authorities of Belarus (16-10-2017 Court of 2nd Instance, Appellate Court).

So, the father is appealing to the Minsk City Court the previous decision seeking its annulment, deeming it illegal, and he is again asking for the return of his children to their place of permanent residence, in accordance with the provisions of the 1980 Hague Convention.

The cassation appeal of the father in regards to the 1st Judgement of the Belarusian judicial authorities from 23-08-2017 is rejected by the decision from 16-10-2017 of the Minsk City Court that insists that the decision of the Court of the first instance was legal and correct because it had no jurisdiction to judge the case, as it does not examine civil proceedings.

Based on this, it is clear and obvious that the Belarusian judicial authorities are not familiar with The Hague Convention and do not know how to implement it, even though it is incorporated into the law of their state. However, considering the whole issue more closely and in conjunction with the subsequent decisions of the Belarusian judicial authorities (which will be quoted below), I would say that the above decisions deliberately rejected the allegations of the father in order to win time – a valuable time because by causing all of these formal delays Mr. Cheropoulos’ young children would be forced to adapt to the environment of the country they were moved illegally.

Decision text attached hereto: 

2017.10.16 EN Decision & Motivation from Minsk City Court to reject my CASSATION Appeal submitted 2017.08.25

2017.10.16 RU Decision & Motivation from Minsk City Court to reject my CASSATION Appeal submitted 2017.08.25

# Third Judgment of the Judicial Authorities of Belarus (16-05-2018 Court of 2nd Instance)

Following the father’s objection, the Minsk City Prosecutor filed a written complaint against the above two decisions, requesting their annulment and retrial by the first instance court. As the Prosecutor rightly and legally claimed in his protest (in accordance with the provisions of Chapter 3 and Articles 29 and 30 of Chapter 5 of the 1980 Hague Convention), the application for the return of children to their country of permanent residence may be submitted directly to the judicial authorities of a Contracting State, and Belarus has acceded to the 1980 Hague Convention since 1998. Thus, the Minsk City Prosecutor concludes that the Belarusian civil courts did have jurisdiction to hear the father’s request for the return of his children to their country of residence and that the case should be reconsidered by a court of the first instance.

Decision text attached hereto: 

2018.05.02 EN Protest & Decision of acceptance of Hague complaint from Public Prosecutor 02-05-2018 No. 44-г-78

2018.05.02 RU Protest & Decision of acceptance of The Hauge complaint from Public Prosecutor 02-05-2018 No. 44-г-78

Following the above protest of the Prosecutor of Minsk, on 16-05-2018, the Presidium of the Minsk City Court issued the decision confirming that the protest of the Prosecutor of the City of Minsk was legal and well-founded, and it ruled to annul the decision from 23-08-2017 of the Oktyabrsky District Court of the City of Minsk, as well as the other decision from 16-10-2017 of the Minsk City Court in regards to father’s request for the return of his children to the country of their permanent residence. It also ruled to reconsider the case in the Court of the first instance.

Decision text attached hereto: 

2018.05.21 EN Minsk City Court Decree No. 44-Γ-78 Regarding Hague Decision 2017.08.23 & 2017.10.16 (signed 21-05-2018)

2018.05.21 RU Minsk City Court Decree No. 44-Γ-78 Regarding Hague Decision 2017.08.23 & 2017.10.16 (signed 21-05-2018)

Legal Commentary:

At this point, it is worth noting that until the above decision was issued ordering to simply reconsider the case by the Court of the first instance confirming that it does have the relevant jurisdiction, a whole year has already passed since Mr. Cheropoulos’ children have been moved illegally while he was taking all legal actions requesting their return to the country of their permanent residence (!!!). We are therefore concluding that the Belarusian judicial authorities acted with a great delay, solely at their own fault and in this very serious and sensitive case because it involves the abduction of minors by their mother.

It is also noteworthy that this Court, of May 16, 2018, was the only one held in the presence of the Honorary Consul of Greece in Belarus, who attended the hearing as an “Observer” at the request of the father, who was desperately looking for assistance and support of diplomatic and consular authorities of his country of origin (Greece), but also of his residence (Sweden), simply trying to ensure the observance of legality by the Belarusian judicial authorities and the implementation of the law.

The presence of the Honorary Consul of Greece in Belarus obviously played an important role, since this decision was ultimately the only one issued pursuant to the law. Since then, unfortunately, the Honorary Consul of Greece has never appeared in the courts that followed to support the legal rights and legitimate demands of Mr. Cheropoulos, a fact which reasonably indicates and raises suspicions that the Honorary Consul was probably pressured by high officials or maybe even government officials of the country of Belarus (!).

# Fourth Judgment of the Judicial Authorities of Belarus (12-07-2018 Court of 1st Instance)

The first instance of the Oktyabrsky District Court of the City of Minsk reviews the application of Mr. Cheropoulos and issues the decision of 12-07-2018 rejecting it once again, for the following reasons:

That,

1st
The children have been living in Belarus for more than a year (15 months) since they were transferred from Sweden, and they have fully acclimatized to the Belarusian environment. In fact, the Court concludes in this Judgment, citing Article 12 of the 1980 Hague Convention, which states that if the child has been displaced and less than one year has elapsed between the transfer and the commencement of proceedings by a judicial authority, the competent authority shall immediately order the return of the child. If the proceedings have started after one year, the judicial authority orders the return of the child, unless it is established that the child has adapted to the new environment.

2nd
The return of the children to Sweden and their life without their mother can cause them psychological trauma and is not in their best interest.

Decision text attached hereto:

2018.07.18 EN Motivation to Decision from the 12th of July 2018 to reject my Hague Claim for the 2nd time

2018.07.18 RU Motivation to Decision from the 12th of July 2018 to reject my Hague Claim for the 2nd time

2018.07.18 GR Motivation to Decision from the 12th of July 2018 to reject my Hague Claim for the 2nd time

 Legal Commentary:

The Court of First Instance clearly rejects the father’s application, misinterpreting Article 12 of the 1980 Hague Convention, recognizing that, in July 2018, more than a year has passed and therefore, they should not immediately order the return of the children, in case they find that they have adapted to the new environment.

Article 12 expressly provides:

”Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith”.

”The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment”.

From the above, it becomes clear that the judicial authorities of Belarus misinterpret Article 12, considering that more than one year has passed since the children moved until the day the case was discussed in July 2018, when in fact, Article 12 defines the case as less than one year from the time of illegal movement until the time of filing the application with the judicial or administrative authority of the Contracting State (and not the hearing of the case). This is provided for in Article 12 in order to avoid the possibility of intentional or unintentional delay by the judicial authorities of a Contracting State and the consequent loss of the right of the parent who is left behind and deprived of his children, despite having acted lawfully immediately.

In the present considered case, Mr. Cheropoulos’ children were abducted by their mother on 18-04-2017. He immediately submitted a request to the competent Central Authority of Sweden for the return of the children on 25-4-2017, according to the provisions in Article 8 of the 1980 Hague Convention and within the deadline of Article 12. In fact, as follows from the above (see first decision), on 23-8-2017, the first decision of the Oktyabrsky District Court of the City of Minsk was already issued on the submitted application of the father requesting the return of the children to their place of permanent residence in Sweden. Therefore, the father acted immediately, and within the time limits of Article 12.

Secondly, the decision rejects the father’s request because the return of the children to Sweden and their stay without their mother may cause them psychological trauma and is not in their interest. It is, therefore, assumed that if the children return and stay in Sweden, this should be done without their mother. In fact, the Court came to this conclusion based on the fact that after the disappearance of the mother with the children, the Swedish authorities launched a criminal prosecution against her and issued an arrest warrant for her. Therefore, if the mother returns to Sweden, she will be arrested, and this will cause psychological trauma to the children.

However, the mother knowingly committed a criminal offense and moved the children illegally, ignoring the psychological consequences that her actions would have on the children and ignoring the violation of the father’s paternal and parental rights. In all benevolent states, child abduction is considered a criminal offense.

As a matter of fact, the children could return to their country of permanent residence with their mother, who could turn to the Swedish judicial authorities, which are the only ones competent to cover this case, and the mother would be even still able to claim custody of the children legally or share the custody with the father, and while she would most likely face some consequences of her illegal actions, she would still be close to her children, with some safety precautions implemented to avoid a new kidnapping attempt from her side.

It is neither legal nor morally right to punish the father and the children with such flawed court rulings simply to protect the mother who clearly committed a crime, ignored the consequences of her actions, and, in the end, has even been rewarded for her illegal choices, because in reality, her illegal actions have been justified by Belarusian courts.

Based on the above, it is obvious that the judicial authorities of Belarus were taking all the possible desperate measures not to accept the legal and well-founded request of the father and that they violated International Law and International Treaties. In addition, they ignored the paternal and parental rights of Mr. Cheropoulos, but also the human rights of his children, without even taking into account the large amount of evidence provided by the father from the period they lived in Sweden as a family, which also included evidence of use of force by the mother on the children while the mother has even tried to harm herself and was, therefore, being monitored by a psychologist.

Finally, the Court accepts the psychological report of the children conducted on 06-06-2018, ordered by the Oktyabrsky District Court in Minsk, to conclude that the minors have a special bond with the mother and that she has created all the appropriate conditions for the proper living of the children.

It is noteworthy that for a number of years, the Belarusian courts refused to provide a copy of this psychological report of the minors to the father and that this psychological survey of the minor children took place without his consent and without his knowledge.

# Fifth Judgment of the Judicial Authorities of Belarus (10-09-2018 Court of the 2nd Instance, Appellate Court)

The father then filed another appeal against the above decision, seeking its annulment as illegal, and requested the return of his children to their place of permanent residence again, in accordance with the provisions of the 1980 Hague Convention. In addition, he rightly and lawfully claims that the stay of the children in Belarus for a long time was not caused by any delays on the father’s side as he started the legal process to achieve their return immediately, and in reality, delays have been caused intentionally or unintentionally by the judicial authorities of Belarus.

On 10-09-2018, the Minsk City Court rejected the father’s appeal and simply made a copy-pasted of the decision from the court of the first instance, which recognized it as legal and correct. In fact, this decision rejects as unfounded the arguments of the father regarding the illegal movement of his children, but also his claim that the stay of the children for a long time in Belarus was not due to his delay in starting the legal process for their return, but at a delay caused intentionally or unintentionally by the judicial authorities of Belarus.

In fact, the father’s last objection / argument is rejected by the Court as unfounded because, allegedly, the Court, guided by the 1980 Hague Convention and the rules of international law, gave the appropriate legal assessment to the circumstances of the case.

At this point, I do not think that further legal comment would be appropriate since, on the one hand, what the above decision from Minsk City Court describes, is identical to the ruled decision from July 12, 2018, by the court of 1st Instance, and on the other hand, the intentional refusal of the Judicial Authorities of Belarus to enforce and respect the law, in their deliberate provocations’ to delay the process in the return of the children, is now clear and distinct, so that they can put forward the fabricated argument that the children are now acclimatized to the environment of Belarus.

Decision text attached hereto:

2018.09.10 EN DECISION Minsk City Court to reject Appeal regarding the decision on The Hague Convention Ruled 2018.07.12

2018.09.10 RU DECISION Minsk City Court to reject Appeal regarding the decision on The Hague Convention Ruled 2018.07.12

# Sixth Judgment of the Judicial Authorities of Belarus (05-06-2019 Prosecutor of Minsk)

Subsequently, following a relevant appeal of the father to the Prosecutor of the city of Minsk against the above two decisions (namely the courts of the first and second instance), in which he protests against the rejection of his application for the return of his children to their country of permanent residence, the Prosecutor of the city of Minsk issued his rejection decision of 05-06-2019.

This decision is, once again, a repetition of the two previous judgments, and the Prosecutor considers that the Court reasonably refused to return the minors to Sweden because it found in the circumstances of the case that there was no breach of the provisions of the 1980 Hague Convention or International Law and in addition, all the evidence was properly evaluated. So, the father is still facing an impenetrable wall built by the Belarusian judicial authorities, which refuse to implement the International Conventions, yet he is determined to reach the end, thinking that his children are the most valuable thing he has and he will not give up on his fight.

Decision text attached hereto:

2019.06.05 EN Decision to Reject Supervisory Complaint from Publ. Prosecutor of our 2nd Hague Case Appeal

2019.06.05 RU Decision to Reject Supervisory Complaint from Publ. Prosecutor of our 2nd Hague Case Appeal

# Seventh Decision of the Judicial Authorities of Belarus (30-09-2019 Prosecutor General of Belarus Mr. Koniuk)

The father then submitted an appeal to the Attorney General of the Republic of Belarus and again appealed against the decisions of the courts in the first and second instances, seeking their annulment.

The Attorney General of the Republic of Belarus issued his decision on 30-9-2019, rejecting once again the appeal of Mr. Cheropoulos. This Judgment repeats, more succinctly, the same as the previous ones, concluding that the Court reasonably and lawfully refused to return the minors to Sweden because the circumstances of the case show that there was no violation of the provisions of the 1980 Hague Convention or International Law.

Decision text attached hereto:

2019.09.30 EN REJECTION from Prosecutor on our Hague Complaint submitted by Lawyer Mashonskaya

2019.09.30 RU REJECTION from Prosecutor on our Hague Complaint submitted by Lawyer Mashonskaya

# Eight Decision of the Judicial Authorities of Belarus (01-11-2019 Prosecutor General of Belarus Mr. Koniuk)

The father returns with a new appeal against the decisions of the first and second instance court, on which the decision of the Prosecutor General of the Republic of Belarus was issued on 01-11-2019.

This decision rejects the appeal of Mr. Cheropoulos on the grounds that it should have been submitted within one year from the date of entry into force of the court decision and is, therefore, statute-barred and is not being considered. Belarusian prosecutors were slow to respond and deal with the father’s appeals. He was ignored.

Mr. Cheropoulos goal was to get his case to the Supreme Court of Belarus, as he had pinned all his hopes on it to implement the 1980 Hague Convention and International Law. This decision deprives him of the possibility of his case being considered by the Supreme Court, despite the fact that he himself did what was humanly possible and faithfully followed the advice of his then-lawyer in Belarus, Ms. Mashonskaya. The decision was signed by prosecutor S.A. Abramovich.

Decision text attached hereto:

2019.11.14 EN REJECTION of SUPERVISORY APPEAL from Gen. Prosecutor Mr. Koniuk dated 01-11-2019

2019.11.14 RU REJECTION of SUPERVISORY APPEAL from Gen. Prosecutor Mr. Koniuk dated 01-11-2019

# Ninth Judgment of the Judicial Authorities of Belarus (13-01-2020 Supreme Court of Belarus)

Despite the existence of the previous rejection decision, but also one with the exact same content (i.e. that the father cannot go to the Supreme Court due to statute of limitations – which was significantly caused by delays of the Prosecutor’s Office of Belarus), Mr. Cheropoulos appeals to the Supreme Court of Belarus, which issues its decision of rejection 13-01-2020 but not due to statute of limitations.

In particular, the decision of the Supreme Court, once again misinterpreting Article 12 of the 1980 Hague Convention, concludes that the father’s request for the return of the children to their country of permanent residence was legally rejected, taking into account the young age of the children, their special love for the mother who takes care of them from birth and fulfills her parental responsibilities properly, but also the fact that the separation of the children from their mother and their return to their country of permanent residence is not in their interest and may cause them psychological harm.

The above information taken into account by the Supreme Court is arbitrary and does not comply with the provisions of the 1980 Hague Convention. The father never requested the separation of the children from the mother. He asked for the children to be returned to their country of permanent residence, where he would also exercise custody together with their mother, and it is up to the Swedish courts to decide further as they have the sole jurisdiction to do so. The mother could return with the children to their country of permanent residence, accept the consequences of her illegal actions, but also claim custody of the children, or contact with them in the Swedish courts. It is not possible for the mother to avoid the legal consequences of her illegal actions.

A mother’s avoidance of the legal consequences of her own actions should not serve as an excuse that the children should not be returned because they may be separated from the mother. If we were to adopt this logic, then the 1980 Hague Convention makes no sense and does not work, since this argument could be used in all cases.

Conclusion:

From the above, it becomes clear and indisputable that the Belarusian judicial authorities blatantly violated the International Conventions ratified by the Republic of Belarus by disregarding the paternal and parental rights of Mr. Cheropoulos, but they also violated the human rights of his children and insulted the sense of law, the ethics, and logic of every respectable and prudent person but also of every benevolent society that respects people and their rights.

The Belarusian judicial authorities deprived Mr. Cheropoulos of all that was most valuable in his life, his children, despite the fact that the Swedish courts gave custody of the minors to their father. The Belarusian authorities, in their attempt to protect the mother from the legal consequences of her illegal actions, punished the father senselessly, violated International Law and International Conventions, and forced minors to be deprived of paternal presence and love but also of the guaranteed and comfortable standard of living in the country where they were born, in Sweden.

The Commenting Lawyer, Attorney at Law; 

Martha Poni, Attorney at Law (Bar. No. 6101)
Pl. Dimokratias 12 – Thessaloniki – GREECE
Tel: 2310 557 100,
Fax: 2310 557112
Email: poni_ma@yahoo.gr
Stamp/Signature

PDF of Legal Analysis of The Hague Case in EN, GR, RU, UA, SK, and IT:

2020.08.04 EN Legal Analysis of The Hague Case Conducted by Attorney Ms. Martha Poni

2020.08.04 GR Legal Analysis of The Hague Case Conducted by Attorney Ms. Martha Poni

2020.08.04 RU Legal Analysis of The Hague Case Conducted by Attorney Ms. Martha Poni

2020.08.04 UA Legal Analysis of The Hague Case Conducted by Attorney Ms. Martha Poni

2020.08.04 SK Legal Analysis of The Hague Case Conducted by Attorney Ms. Martha Poni

2020.08.04 IT Legal Analysis of The Hague Case Conducted by Attorney Ms. Martha Poni

Nicolaos AA Cheropoulos
Father of Anthie’ and Alexandra
Stockholm, Aug 2020
Reviewed Oct. 2023
en_USEN