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In Zajaczkowski v. Zajaczkowska, 932 F.Supp. 128 (D. Maryland)
an action was filed under the Hague Convention on the Civil Aspects of
International Child Abduction and the International Child Abduction
Remedies Act. The District Court noted that the rules of procedure
applicable to ordinary civil cases would seem to be at odds with the
Convention and ICARA's premium on expedited decision-making. In the
Court's view the writ of habeas corpus, while not mentioned in ICARA,
whose office is to test the legality of an alleged wrongful detention.
Habeas Corpus should issue since the action translates rather easily
into a test of wrongful abduction or retention within the meaning of the
Convention. "Writs of habeas corpus may be granted by ... the district
courts ... within their respective jurisdictions." 28 U.S.C. 2241(a).
The Federal Rules of Civil Procedure are only applicable to proceedings
for habeas corpus "to the extent that the practice in such proceedings
is not set forth in statutes of the United States and has heretofore
conformed to the practice in civil actions." Fed.R.Civ.P. 81(a)(2); see
also Ruby v. United States, 341 F.2d 585, 587 (9th Cir.1965), cert.
denied, 384 U.S. 979, 86 S.Ct. 1877, 16 L.Ed.2d 689 (1966) (ordinary
rules of civil procedure do not apply in a habeas proceeding). The court
held that the petition would be treated as an application for writ of
habeas corpus and thus respondent, who had not yet been served, would be
ordered to appear before the court to show cause why writ should not
issue. The court noted that there are, however, no special procedural
rules prescribing the course of action for a federal court when a
petition under the Convention and ICARA is filed, and the legislative
history of ICARA provides little by way of enlightenment. The Convention
contemplates quick action; a period of six weeks from the date of the
filing of the petition to the court's
decision is envisioned. See Convention art. 11 ("If the judicial or
administrative authority concerned has not reached a decision within six
weeks from the date of commencement of the proceedings, the applicant
... shall have the right to request a statement of the reasons for the
delay."); 22 C.F.R. 94.6(h) (1995) (requiring United States authorities,
upon request by a petitioner, to seek a report on the status of court
action when no decision has been reached by the end of six weeks). The
time frame associated with habeas matches the intent of the Convention
far better than ordinary federal procedural rules would. The fact that a
treaty and a statute of the United States were involved strengthened the
case for allowing habeas relief. The federal habeas statute predicates
the grant on the character of the custody and specifically includes
reference to a person "in custody in violation of the Constitution or
laws or treaties of the United States." 28 U.S.C.A. 2241(c)(3) (West
1994). It noted that at least one federal district court had applied the
habeas procedure in a case under the Convention and ICARA, although it
did not, at least in a published opinion, explain its reasoning for
doing so. See Walton v. Walton, 925 F. Supp. 453, 455-56 (S.D.Miss.1996)
In view of the foregoing, the Court treated the petition as an
application for a writ of habeas corpus. The federal habeas statute
allows the Court to either award the writ or issue an order directing
the respondent to show cause why the writ should not be granted. 28
U.S.C. 2243. The statute requires the respondent to "make a return
certifying the true cause of the detention" within three days unless for
good cause additional time iis allowed. Id. After the return, a hearing
must be set within five days (unless for good cause additional time is
allowed). For the convenience of the parties and the Court, no written
return or other pleading was required. Respondent was given permission
to submit a written response to the Petition at or before the date of
the hearing. Pursuant to 28 U.S.C.A. 2243, the Court conducted a
preliminary review of the application and it was not plainly apparent
that Petitioner was entitled to no relief. The Court ordered Respondent
to appear before the Court and show cause why a writ of habeas corpus
should not issue and why Jan should not be returned to Poland.
Respondent was ordered to "produce at the hearing the body of the person
detained," The Court stated it would hear evidence and argument in
summary fashion and decide the case at the hearing, unless, for good
cause shown, it finds reason for delay.
The decision cites, inter alia, Joel R. Brandes & Carole L. Weidman,
International Child Abduction, N.Y.L.J., October 26, 1993, at 3.
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