Provisions Of Implementation Of The Convention De L'aja Of October 25, 1980 On Civil Aspects Of International Abduction Of Minors

Original Language Title: Disposizioni Di Attuazione Della Convenzione De L'aja Del 25 Ottobre 1980 Sugli Aspetti Civili Della Sottrazione Internazionale Di Minori

Read the untranslated law here: http://www.consigliograndeegenerale.sm/on-line/home/archivio-leggi-decreti-e-regolamenti/scheda17016306.html

Microsoft Word - D065-2008.doc 1 REPUBLIC OF SAN MARINO We the Captains Regent of the Most Serene Republic of San Marino Having regard to Article 4 of the Constitutional Law no.185 / 2005 and Article 6 of Qualified Law n.186 / 2005; Promulgate and publish the following ordinary law approved by the Great and General Council at its meeting on 23 April 2008. Law 28 April 2008 Ranked # 65 INSTRUCTIONS FOR IMPLEMENTATION OF THE CONVENTION OF THE HAGUE DE October 25, 1980 ON CIVILIAN ASPECTS OF INTERNATIONAL CHILD ABDUCTION Art. 1 (Scope and definitions) 1. in implementation of the provisions of the Convention on the civil aspects of international child abduction, done at the Hague, October 25, 1980, this Act pursues the aim to grant international protection to the child against the harmful effects arising from the wrongful removal or retention and to establish re-entry procedures to ensure the prompt return of the same in their State of habitual residence. This law also guarantees the protection of rights of custody and of relating to the child. 2. Unless otherwise specified, the terms listed below, applicants in the text of the law, shall be given the following meaning: Trustee: the person, institution or body having, individually or jointly, the right of custody attributed by state law in which the child was his residence immediately before the removal or retention, by a judicial or administrative decision or by agreement in force under the law of that State. central authority: the Single Court, according to the instructions given by the Executive Magistrate. lower: those under 16 illicitly transferred or retained, or in respect of whom are asked to organize or protect the effective exercise of rights of access. residence: the place where a person usually lives. Resistant: the person who removed or retained the child and which opposes the return to the State of habitual residence of the minor or that is opposed to the question of organizing or protecting the effective exercise of rights of access in respect of the minor person. Applicant: the person, institution or body acting in accordance with Article 8 or 29 of the Convention, alleging that there has been breach of custody or visitation rights under Article 3 or Article 21 of which It holds individually or jointly. 2 CHAPTER I Art. 2 (General Provisions) 1. The special procedure on the application filed by the Central Authority or submitted directly to the Commissioner of the Law on the return of a child from the custody of which has been stolen or concerning the 'organizing or securing the effective exercise of rights of access, it is marked urgent. 2. The application submitted directly to the Law Commissioner, pursuant to Article 29 of the Convention, has the form of the application and content of Article 7, paragraph 2, letter a), b) and c) of this Act. 3. Any deadline dates are binding and relate to current days. 4. The decree defines the proceedings in the Law Commissioner, it is immediately enforceable. 5. The appeal before the Judge of Appeal does not suspend enforcement of the measure. Art. 3 (protection measures) 1. The protection measures are aimed in particular at preventing the further movement of the child by the State and to prevent further harm to the same child or prejudice to interested parties. 2. Resorting serious and imminent harm to the interest of the child, the protection measures can also consist in entrusting temporarily to third parties or, if the award is not practical in good time, in his place in a suitable structure. 3. The Central Authority shall provide timely information about the security measures taken, to the Central Authority of the State where the child was resident immediately before the removal or retention. Art. 4 (urgent Central Authority Activities) 1. The Magistrate of the Single Court Manager is the Central Authority and maintains ongoing relationships with the competent court for the duration of the proceedings. 2. Within five days from the date of receipt of the application referred to in Article 2, paragraph 1, the Executive Magistrate of the Single Court, or other magistrate appointed by a decree: a) imparts instructions to the police to locate the child and provides that they present, without delay, report to the central Authorities and the Law Commissioner on the outcome of the investigation; b) has, where appropriate, temporary protection measures in the interests of the child, imparts
orders for their execution, and provide that the bodies concerned shall submit, without delay, report to the Central Authorities and the Law Commissioner about how successfully; c) orders the Minor Service's experiment mediation for the voluntary return of the child or to facilitate the amicable settlement of the dispute concerning the organization or securing the effective exercise of rights of access; fixed, also, the period within which the Minor Service has to report in writing the result of the mediation to the Central Authorities and the Law Commissioner; d) order, if appropriate, to the Minor Service to take action with the Central Authority of the State where the child was resident immediately before the removal or retention, in order to obtain information relating to the social background; e) order the transfer of the dossier to the Law Commissioner; 3 f) order the communication of the application referred to in Article 2, paragraph 1, the defendant, the person with whom the child is, if different from the resistance, and the Attorney General of the State for the exercise of the right of defense of the child. 3. The decree shall be communicated within four days: a) the Central Authority of the requesting State; b) the controls of the police, also for the implementation of any measures to protect the child, in consultation with the Minors' Service; c) the Minors' Service, also for the implementation of any measures to protect the child, in consultation with the Headquarters of the Police Force; d) the Law Commissioner; e) the applicant, in case it made use of the option under Article 29 of the Convention; f) the respondent and the person with whom the child is, if different from the resistant; g) the Attorney General of the State. Art. 5 (the lower back) 1. The designated attorney by the State performs the function of defender of the minor and has the legal representation. 2. The defense of the child has the power to: a) meet the child; b) meet, separately, the applicant, the respondent and the person with whom the child is, if different from the resistant; c) ask the Commissioner of the Law: i) the adoption of measures to protect the child, or the modification or revocation of measures already adopted; ii) the adoption of special protection measures for the execution of the order for return, in accordance with the age and state of mental and physical health; d) request the assistance of the Minors' Service and the Police for the prompt implementation of child protection measures; e) ask the Central Authority activation in order to obtain information relating to the child's social situation in the country where he had his residence immediately before the removal or retention; f) request to the Central Authority for the adoption of the necessary protection measures in relation to the changed circumstances after the definition of the procedure, to ensure the return of the child in a safe condition; g) to assist the implementation of the provisions relating to the return of the child. CHAPTER II Art. 6 (Activities of the Law Commissioner in preparation for the discussion) 1. The Law Commissioner, within three days of receipt of the application referred to in Article 2, paragraph 1, or from the filing of the appeal, by decree: a) fixed the hearing for the hearing of the child and, where appropriate, appoint one or more assessors for the hearing itself; b) fixed the hearing for discussion; c) confirmation, as a result of changed circumstances, withdraw or amend the protective measures of the child have already adopted or adopt protective measures once they have been adopted and are necessary in relation to the current circumstances; d) alerts the resistance of the faculty to file memory in accordance with Article 7. 2. The decree shall be notified within four days: 4 a) the Central Authority; b) the applicant, in case these has exercised the option under Article 29 of the Convention; c) the strong and the person with whom the child is, if different from the resistant; d) to any consultant appointed for the hearing of the child; e) the Attorney General of the State; f) the Minors' Service; g) the commands of the police. 3. The hearing referred to in paragraph 1 a) and b), must not over twenty-five days from the date of receipt of the application referred to in Article 2, paragraph 1, or from the date the application was lodged. Art. 7 (Memory) 1. The respondent has the right to file memory in the Civil Registry, including by means of a defender, within five days from the communication of the decree. 2. The memory contains: a) the name, surname, place and date of birth of the child, the residence which he had
immediately before the removal or retention; the name, surname and residence of the applicant; the name, surname and residence of the respondent; the name and surname of the lawyer which has been given the power of attorney from the applicant and by the defendant or, in the case of the minor's defender, the authorization indication for the assistance and defense in the proceedings; b) a specific indication of the existence of the elements mentioned by the Convention, in particular, in Articles 3, 4, 12, paragraph 2, 13 paragraph 1 a) and b) and 13 paragraph 2. c) the definitive conclusions only with respect to demand for return of the child or organization or effective exercise of rights of access. 3. The defense of the child must file memory of identical content within the period referred to in paragraph 1. 4. The memories, with a copy to the other parts, they must be filed in the Civil Registry, which gives immediate notice of the deposit. Art. 8 (Hearing of the child victim) 1. Every child capable of discernment has the right to express his opinion to be duly taken into consideration, taking into account the age and maturity of the child and the direct influence of him exerted by the defendant or the person with whom the child is, if different from the resistant. 2. The child is heard in person by the judge who, under the circumstances, may be assisted by one or more particular expertise consultants, appointed for this purpose. 3. The hearing of the child is carried out in an appropriate environment, in relation to his age. The court may order that it does not assist the applicant, the defendant and their defense, the person with whom the child is, the smaller defender and any other person whose cooperation is necessary for the registration and verbalization of ' hearing. 4. The hearing is recorded by audio-visual means. In any case, the minutes drawn up by the Registrar. 5. Closing the hearing, the parties concerned have the right to take immediate view of the video recording and to obtain a copy of the minutes. 5 Art. 9 (discussion of Hearing) 1. At the hearing of the judge dealing with: a) verify that the contradictory is properly established and, where appropriate, adopt the necessary measures; b) omission of any formality not essential to be heard, personally I feel: i) the applicant; ii) the resistant; iii) the person with whom the child is, if different from the resistant; iv) the official of the Minors' Service assigned to operate the mediation referred to in Article 4, paragraph 2, letter c); v) the defender of the child. 2. The judge, as appropriate, experiences a face conciliation attempt to secure the voluntary return of the child or an amicable settlement of the dispute concerning the organization or the effective exercise of rights of access. 3. The defenders have the right to modify the definitive conclusions, taking into account the views expressed by the child or if the circumstances have changed. 4. In any case, the court will decide by decree. Art. 10 (Decision) 1. The decree containing the decision shall be deposited in the Civil Registry within five days of the oral procedure. 2. The court considers that the return puts the child in an intolerable situation under article 13, paragraph 1, letter b) of the Convention, in particular if the defendant, having regard to all the circumstances, is unable to take care of the child in the State where the child was resident immediately before the removal or retention, or this can not reasonably be required from him. 3. In no case the return may be refused under Article 13, paragraph 1, letter b) of the Convention if it is established that adequate arrangements have been to ensure the protection of the child after his return. 4. The decree by which he is willing to return contains: a) the name, last name, the place, the date of birth of the child and the residence which he had immediately before the removal or retention; b) the name, the surname of the applicant to which the child is to be delivered; c) the name, last name of the respondent; d) the name and the surname of the child advocate; e) the grounds on which the decision was based; f) an indication of the implementing rules of the decree; g) an indication of subjects that may be responsible for the execution of the decree, other than the Police and the Minors' Service; h) the recommendation to the respondent to implement the voluntary return of the child with a warning that it will result in default with enforcement.
5. The decree on the organization and the effective exercise of rights of access shall contain: a) the name, surname, place and date of birth of the child in respect of whom you asked the organization or the protection of 'effective exercise of rights of access; b) the name, the surname of the applicant entitled to the effective exercise of rights of access; c) the name, last name of the respondent; d) the name and the surname of the child advocate; e) if it was not prepared by the foreign, the annual regulation of the right of visit, indicating the day, hour and place of pickup and return of the child, considered the State of residence of the applicant 6 where the temporary transfer is authorized the minor abroad for the effective exercise of rights of access; f) where appropriate, the practical arrangements for organizing the effective exercise of rights of access, if the necessary arrangements have not or have not sufficiently been made in the judgment delivered by the foreign which regulates the rights of access, provided they are respected the essential elements of this judgment; g) the grounds on which the decision was based; h) the names of individuals responsible for the execution of the decree if necessary, other than the Police and the Minors' Service; i) the recommendation to the respondent to facilitate the effective exercise of the right to visit with a warning that failing it will give rise to enforcement. 6. The decree referred to in paragraphs 4 and 5 also confirms or as a result of changed circumstances, revocation or modification of measures to protect the child or have already adopted the arrangement of protective measures if they were not adopted and it is necessary in relation to the current circumstances. 7. The decree shall be communicated without delay: a) the Central Authority; b) the Judge of Appeal; c) the applicant, in case it made use of the option under Article 29 of the Convention; d) the durable and the person with whom the child is, if different from the resistant; e) the defender of the child; f) persons, if appointed, are to carry out the decree, other than the Police and the Minors' Service; g) the Minors' Service; h) the commands of the police. CHAPTER III Art. 11 (the Judge of Appeal Activities in preparation for the discussion) 1. Within five days from the receipt of notice of the decree referred to in Article 10, interested parties may submit a complaint to the court of appeal in cases of nullity established by paragraph 3 of Article 12 and, in the same term, they may propose suspension petition. The Judge of Appeal inform the Central Authority of the opening of the proceedings before him. Art. 12 (Complaint and request for suspension) 1. The applicant, the respondent and the child's lawyer have the right to appeal the order under section 10 through a complaint to the Judge of Appeal in cases of nullity set out in paragraph 3. 2. the appeal is by way of appeal containing: a) the name, last name, the place, the date of birth of the child, the residence which he had immediately before the removal or retention, or, in the event that the decree challenged has governed the organization and granted the effective exercise of rights of access, his current abode; the name, surname and residence of the applicant; the name, surname and residence of the respondent; the name and surname of the lawyer which has been given the power of attorney from the applicant and by the defendant or, in the case of the minor's defender, the authorization indication for the assistance and defense in the proceedings; b) an indication of the decree referred to in Article 10; c) the indication of the specific grounds of complaint by which it denounced the nullity of the decree; d) the definitive findings. 7 3. There nullity complaint with reportable when: a) the claimant or the respondent, personally appeared at the hearing of discussion, have not been heard; b) the child, capable of discernment, has not been heard. 4. Even regardless of the proposition of the complaint, the parties concerned may propose request for suspension of execution or effectiveness of implementation of the decree. The instance is proposed with application containing the elements referred to in subparagraphs a) and b) of paragraph 2 and specific information about the recurrence of causes for suspension. 5. There is cause for suspension if: a) the decree ordered the return of the child although it has been shown that there are no adequate measures to ensure the protection of the child after his return; b) the date of the decision are supervening extraordinary circumstances.
6. The complaint and the request for suspension, with a copy to the other parts, must be deposited in the Civil Registry, which gives notice of the deposit within five days. Art. 13 (Opposition to the complaint or the instance of suspension) 1. The parties concerned may oppose the complaint and the instance of suspension. 2. The appeal is lodged with the memory to be filed in the Civil Registry within five days from receipt of the complaint notice or instance of suspension. 3. The memory contains: a) the particulars referred to in paragraph 2 of Article 12, a) and b); b) the specific indication of the grounds of opposition; c) the definitive findings. Art. 14 (Decision) 1. The decree containing the decision shall be deposited in the Civil Registry within five days from the expiry of the deadline for filing of the Opposition memory. 2. The Judge of Appeal is seized of the final decision on the merits: a) when declaring the nullity of the contested decree. In this case, before finally deciding, Healthy nothings detected by adopting all necessary measures; b) when the matter is referred to the suspension of the enforcement or effectiveness of implementation of the contested decree. 3. The Judge of Appeal has the power to hear the parties and, where appropriate, to hear the child in compliance with the provisions of Article 8. 4. The decision is always final and shall immediately be communicated to 'central Authority for the adoption of any protective measures. CHAPTER IV Art. 15 (Final and Transitional Provisions) 1. After the time limits specified in Article 11 without the proposed complaint, the decree of the Law Commissioner is final. 2. The proposition of other legal remedies allowed by the Ordinamento or extraordinary remedies does not suspend the execution of the decree of the Judge of Appeal. 8 Art. 16 (Repeals) 1. The following are repealed all the rules and provisions contrary to this law. Art. 17 (Entry into force) 1. This law comes into force on the fifth day following that of its legal publication. Our Residence, this day of 28 April 2008/1707 THE CAPTAINS REGENT Pink crocuses - Federico Pedini Amati THE SECRETARY OF STATE FOR INTERNAL AFFAIRS Valeria Ciavatta