Ouders moeten eindeloos procederen voor toegang tot kinderen na een scheiding - Mensenrechtenhof veroordeelt Tsjechië (en)
Chamber judgment: Concerning the Czech Republic
The European Court of Human Rights has today notified in writing its Chamber judgments1 in the cases of Fiala v. the Czech Republic (application no. 26141/03), Pedovi? v. the Czech Republic (application no. 27145/03) and Reslová v. the Czech Republic (application no. 7550/04).
The Court held, unanimously in the cases of Fiala and Reslová, and by five votes to two in the Pedovi? case, that there had been:
· a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) of the European Convention on Human Rights on account of the length of the proceedings.
In the Fiala case the Court also held unanimously that there had been:
· a violation of Article 8 (right to respect for family life) of the Convention in that the Czech authorities had failed to make adequate and effective efforts to enforce the applicant’s right of access;
· a violation of Article 13 (right to an effective remedy).
In the Pedovi? case the Court held unanimously that there had been:
· no violation of Article 8 of the Convention in respect of the non-enforcement of the applicant’s right of access.
In the Reslová case the Court held unanimously that there had been:
· a violation of Article 8 of the Convention in that the domestic courts had lacked diligence in the proceedings for the enforcement of the interim order of 17 April 2003;
· no violation of Article 8 in respect of the refusal to grant the applicant custody of her children.
Under Article 41 (just satisfaction) of the Convention, the Court awarded Mrs Reslová 5,000 euros (EUR) for non-pecuniary damage and EUR 800 for costs and expenses; by five votes to two it awarded Mr. Pedovi? EUR 1,500 for non-pecuniary damage and EUR 1,500 for costs and expenses.
(The judgments are available only in French.)
Principal facts
In these three cases, the applicants, who had each separated from spouses with whom they had had children, complained among other things of the length of the proceedings concerning the exercise of parental responsibility and of failure to enforce their rights of access.
Fiala
Ji?í Fiala is a Czech national who was born in 1963 and lives in Nymburk (Czech Republic).
In 1989 and 1992 T. and M. were born of the applicant’s marriage to M.F. In April 2000 M.F. brought proceedings to establish parental responsibility for her minor children in the context of a divorce. The District Court approved the parents’ agreement whereby custody of the children was to be granted after the divorce to M.F., maintenance was to be paid by the applicant in respect of his sons and the applicant was to enjoy access rights. He was to see the children every Tuesday and Thursday afternoon, every other weekend, for one week during the winter holiday, for three weeks during the summer holiday and every other Christmas.
However, M.F. soon began to oppose the arrangements, having also refused an initial proposal of family therapy, and both parents brought fresh proceedings to establish parental responsibility. In these circumstances, the court ordered of its own motion, on 14 February 2001, an interim measure whereby the applicant would enjoy a right of access every other weekend. The applicant’s right of access was ultimately withdrawn in judgments of 8 April and 4 October 2005. Being unable to exercise his right of access in accordance with the interim order of 14 February 2001, the applicant sought assistance from the judicial authorities to have that decision enforced, but without success.
Pedovi?
Nenad Pedovi? is a Croatian national who was born in 1946 and lives in Prague.
He and his wife, R.P., had a son in 1992. In January 1996 R.P. left the applicant. In May 1996 the applicant took his son to Croatia, where the child remained until October 1998, when his mother found him at the home of strangers and took him back with her to the Czech Republic. Since then, the child has been living with his mother in the Czech Republic.
When his wife left him, the applicant brought proceedings to gain parental responsibility for the child. In a judgment of 27 February 2001 Prague District Court awarded custody of the child to the mother and granted the applicant access. On 23 November 2001 Prague City Court confirmed on appeal that R.P. had custody of the child and allowed the applicant to see his son every other Saturday afternoon during the first three months and subsequently every other weekend, on 26 December and for two weeks during the summer holidays. That judgment became final. The court also referred the question of maintenance back to the first-instance court.
The applicant attempted to see his son on many occasions but the child’s mother systematically refused. He contacted the Czech authorities, seeking to enforce his right of access. The authorities issued formal warnings to R.P. and imposed three fines on her, amounting to EUR 1,211, for preventing the applicant from seeing his son.
The applicant lodged two criminal complaints against R.P. on account of her refusal to comply with the court decision granting him access. Proceedings were discontinued in respect of both complaints.
Reslová
Iveta Reslová is a Czech national who was born in 1972 and lives in Církvice (Czech Republic).
In June 2002 the applicant’s husband, M.R., petitioned for divorce and brought proceedings to establish parental responsibility for their two daughters, who were born in 1990 and 1994. He argued that the applicant was often away from home leaving the girls in his care, and that if the court allowed his application for custody he would not prevent the mother from seeing them on a regular basis.
The applicant opposed the divorce sought by her husband, who left the marital home and took their daughters with him. On 17 April 2003 the Czech courts ordered M.R., as an interim measure, to refrain from infringing the applicant’s parental rights and to bring the children back to Církvice. That decision was never enforced.
In February and June 2005 the Czech courts decided to grant custody of the children to the applicant’s husband on the ground that they were well integrated into the new family of their father, whom they regarded as the main parental authority, and that they wished to remain with him.
Summary of the judgment2
Complaints
The applicants complained under Article 6 § 1 of the length of the proceedings to establish parental responsibility. They also complained that their rights under Article 8 had been infringed both by the length of the proceedings and by the failure to enforce their rights of access. Mr Fiala also relied on Article 13 and Mrs Reslová on Article 5 of Protocol No. 7 (equality between spouses).
Decision of the Court
Article 6 § 1
The Court observed that the impugned proceedings had lasted for five years in the Fiala case, for ten years and five months in the Pedovi? case and for three years in the Reslová case. In the circumstances of these cases, it considered that such periods were excessive and did not meet the “reasonable time” requirement. Accordingly, the Court held in all three cases that there had been a violation of Article 6 § 1.
Article 8
The Court considered that the complaints of Mr Fiala and Mr Pedovi? concerning the impact of the length of the proceedings on their right to respect for family life had already been addressed under Article 6 § 1 and did not raise separate issues. Accordingly, it did not consider it necessary to examine them under Article 8 also and decided only to examine the enforcement of the applicants’ access rights under that provision.
In the Fiala case
The Court recognised that the authorities had had to cope with a very difficult situation, which had resulted in particular from the strained relations between the parents, and from the increasingly objectionable conduct of the applicant. However, a lack of cooperation between separated parents could not have absolved the competent authorities from their obligation to take all possible action to ensure that family ties were maintained. The Court was bound to note that the domestic authorities had fallen short of what could reasonably be expected of them. The enforcement proceedings had led only to one formal warning addressed to the mother and very few practical measures had been taken to encourage the parents to take part in family therapy or to arrange a preparatory contact; these could, for instance, have involved imposing penalties on the parents.
The Court was aware that the task of the authorities had not been helped by the inappropriate or even aggressive conduct of the applicant and that his right of access had been withdrawn by the courts in 2005 particularly as a result of that conduct. The Court did not find fault with those decisions but considered that the grounds put forward did not justify the failure, before that date, to take action to enforce the measure ordered on 14 February 2001. Accordingly, the Court considered that the Czech authorities had failed to make adequate and effective efforts to enforce the applicant’s right of access. It therefore held that there had been a violation of Article 8 of the Convention.
In the Pedovi? case
The Court considered that the applicant had contributed, by his lack of cooperation, to the difficulties encountered by the Czech courts in seeking to balance the various interests at issue, and that he had not made the most of the opportunity to re-establish relations with his son. The only shortcomings that could be attributed to the Czech courts lay in the fact that the enforcement proceedings between May 2002 and March 2004 had been somewhat slow, albeit partly as a result of the applicant’s procedural tactics, and in the fact that the payment of fines by the mother had not been demanded sooner. However, having regard to all the endeavours of the authorities to find a solution to the situation at issue, the Court considered that those shortcomings could not per se constitute a breach of the applicant’s right to respect for his family life.
Being in a better position than the Court to strike a fair balance between the child’s interest in living in a calm environment and the interests influencing the father’s actions, the Czech courts, seeking to enforce the right of access, had taken all measures that could reasonably have been expected of it in the presence of a very difficult dispute. Whilst those measures had admittedly failed to produce a satisfactory result, the Court found it necessary to point out that domestic courts were not omnipotent, especially when, in family matters, they had to deal with parents who were unable to overcome their animosity and disregarded their child’s interests. Accordingly, the Court held that there had been no violation of Article 8 as a result of the failure to enforce the applicant’s right of access in respect of his son.
In the Reslová case
Concerning the enforcement of the interim order of 17 April 2003, the Court noted that the measure had not been enforced and had even been declared unenforceable by the District Court, as there had been no indication as to whom custody was granted. In those circumstances the applicant would not have been successful in applying for a right of access, as there had been no decision, not even a provisional one, granting custody of the children to one of the parents. The Court was of the opinion that the Czech courts, by leaving open the question of parental rights and obligations, had allowed the dispute to be settled simply by the passage of time, to the detriment of the applicant. The competent authorities had not therefore made adequate and effective efforts to facilitate the family reunion provided for in the order of 17 April 2003 and had thus failed to uphold the applicant’s right to be reunited with her children. Accordingly, the Court held that there had been a violation of Article 8 under that head.
As to the granting of custody to the applicant’s husband, the Court considered that those decisions had been based on relevant and sufficient grounds and that they had pursued the best interest of the minor children. They could not therefore be regarded as disproportionate. As the Czech authorities had not exceeded their margin of appreciation, the Court held that there had not been a violation of Article 8 under that head.
Article 13
In the Fiala case, the Court considered that there had been a violation of Article 13 of the Convention on account of the absence in Czech law of a remedy by which the applicant could have complained before a domestic court of the length of the proceedings.
Article 5 of Protocol No. 7
In the Reslová case, the Court observed that this complaint, under Article 5 of Protocol No. 7, was based on the same facts as those previously examined and did not raise a separate issue. Accordingly, it did not find it necessary to examine the case under that provision.
In the Pedovi? case, Judges Jungwiert and Butkevych expressed a joint partly dissenting opinion, which is annexed to the judgment.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.