1177e réunion – 11 septembre 2013
Annexe 7
(Point H46-1)
Résolution CM/ResDH(2013)155
Deux affaires contre la République tchèque
Exécution des arrêts de la Cour européenne des droits de l’homme
(Bergmann, requête no 8857/08, arrêt du 27 octobre 2011, définitif le 27 janvier 2012
Prodelalova, requête no 40094/08, arrêt du 20 décembre 2011, définitif le 20 février 2012)
(adoptée par le Comité des Ministres le 11 septembre 2013,
lors de la 1177e réunion des Délégués des Ministres)
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées « la Convention » et « la Cour »),
Vu les arrêts définitifs qui ont été transmis par la Cour au Comité dans les affaires ci-dessus et les violations constatées ;
Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe 1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire :
- de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par restitutio in integrum ; et
- de mesures générales permettant de prévenir des violations semblables ;
Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée ;
Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter les arrêts, y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document DH-DD(2013)45) ;
S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,
DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans ces affaires et
DECIDE d’en clore l’examen.
Execution of the judgments of the European Court of Human Rights
Application No. 8857/08 – Bergmann v. the Czech Republic
and Application No. 40094/08 – Prodělalová v. the Czech Republic
Action report submitted by the Czech Government on 3 December 2012
(anglais uniquement)
In its two judgments of 27 October and 20 December 2011, the Court found a violation of the applicants’ right to respect for family life protected by Article 8 of the Convention in disputes over parental contacts with minor children. According to Article 44 § 2 of the Convention, the judgments became final on 27 January 2012 and 20 March 2012 respectively.
The present report is intended to inform the Committee of Ministers about the individual and general measures of execution of the judgments.[1]
I. Individual measures
In both cases, the violation of the Convention reposed in the State (either administrative or judicial) authorities’ failure in the course of the proceedings on the determination of contact between a parent and a child. Besides that, in Prodělalová, the Court found excessive the delays that had occurred during the proceedings from the part of the national courts. However, in neither of the cases did the Court review the very content of the national courts’ final conclusions on the determination of the applicants’ contacts with their children.
In particular, while in Bergmann, the Hradec Králové Regional Court decided as early as on 7 February 2007 that the contact between the applicant and his child be forbidden (this judgment became final on 12 March 2007), in Prodělalová the proceedings were still pending at the time of the publication of the Court’s judgment. Nevertheless, in this case the Court noted that the restoration of the applicant’s relationship with her children was not conceivable anymore. The government should add that on 17 February 2012 the Ostrava Regional Court confirmed, to its full extent, the Bruntál District Court’s judgment of 16 August 2010 by which the applicant’s contact with her children was forbidden and the applicant was deprived of her parental responsibility in relation to the children; the regional court’s judgment became final on 11 April 2012.
Taken into account that both relevant sets of proceedings, the particular procedural aspects of which had been criticised by the Court, have already ended and that in both cases the contact between the applicants and their children has been forbidden, the government is convinced that there are no individual measures to be adopted in the applicants’ cases.
II. General measures
First of all, the government recalls that in both judgments the violation of Article 8 of the Convention lay in the State authorities’ failure to exhaust all available measures which could have been reasonably expected from them in order to secure the respect for the applicants’ parental rights. For instance, in Bergmann the Court observed that the State authorities adopted hardly any measures of mediation, of assistance or of a supervisory nature; these could have been an admonition of a parent, an imposition of supervision over a minor or of a duty to make use of an assistance of an expert counselling centre as provided for by Sections 12 and 13 of the Act on the Social and Legal Protection of Children and Section 43 of the Family Act. In Prodělalová, the Court criticised mainly an excessive length of the court proceedings, in particular, the period of two and half years during which the applicant’s contact with her children was forbidden by an interim measure. However the Court also mentioned that during this time national courts had adopted no measures of mediation or assistance. It stems from the Court’s reasoning that the national courts had at their disposal measures of mediation and assistance as provided for by Sections 100 (3) and 110 (2) of the Rules of Civil Procedure.
Soon after the delivery of the Court’s judgments, the Ministry of Justice (“the MoJ”) published the translated versions of the judgments on its Internet site. In order to prevent, in the light of the judgments at hand, violation of the relevant provision of the Convention in the future, other steps have been taken by the Ministry of Labour and of Social Affairs (“the MoLSA”) in respect of child welfare authorities and by the MoJ in respect of the national courts.
A. Measures adopted in respect of child welfare authorities
At a meeting held between the MoLSA and the representatives of all regional authorities on 23 February 2012, the latter were called upon to spread the translated judgments among all local child welfare authorities.
The MoLSA also requested the Research Institute for Labour and Social Affairs (Výzkumný ústav práce a sociálních věcí) to carry out a questionnaire-based survey, completed in July 2012 and focused on the application of different legal measures, in particular those mentioned by the Court in the Bergmann judgment (see above), in practice by local child welfare authorities. Two subsequent meetings between the MoLSA’s and the regional authorities’ representatives were held on 27 September and 4 October 2012 where the issues were discussed again, especially in the light of the envisaged changes in the relevant legal framework.
An amendment to Act No. 359/1999 on the Social and Legal Protection of Children, was indeed adopted and confirmed by parliament on 5 September and 7 November 2012 respectively and became Act No. 401/2012. The amendment puts particular emphasis on the application of methods of a preventive nature by the child welfare authorities which shall also have the possibility, according to the new wording of Section 13 of Act No. 359/1999, to impose on the minor, on the parents or on any other person responsible for the minor, a duty to avail themselves of a specialised counselling assistance or to be present at the first three hour sitting with an official mediator[2] or at a therapy. According to the amendment, the responsibility to decide on the measures provided for by Section 13 of the mentioned act shall be transferred to higher administrative authorities that are generally better placed to pursue administrative proceedings relating to the measures imposed. The amendment shall enter into force on 1 January 2013.
B. Measures adopted in respect of the national courts
The MoJ sent the translated judgments to the presidents of all regional courts in order for the judgments to be spread among both the regional courts’ and the district courts’ judges deciding in the proceedings on determination of contact between a parent and a minor.
The government believes that, as far as the judicial decision-making process in relation to the proceedings on the determination of contact between a parent and a minor is concerned, the best way how to secure the most appropriate application of all existing measures in order to preserve or restore family relationships is above all the proper training of the judges deciding such cases. Hence, the mentioned issue, including the Court’s case law in the field of family life, is a regular subject matter of seminars held at the Judicial Academy of the Czech Republic.[3]
Furthermore, in combination with the new amendment to the Act on the Social and Legal Protection of Children (see above), new Act No. 202/2012 (the Act on Mediation) entered into force on 1 September 2012. It provides for new means of fast and extrajudicial resolution of various complicated situations including parental conflicts. Therefore, a specialised seminar focused on the issue of mediation took place at the Judicial Academy on 18 June 2012 and another seminar focused on the issue of proceedings concerning minors with a particular emphasis having been put on imposing educational measures was held at the Judicial Academy from 29 to 31 October 2012.
The matter is, to a large extent, in the hands of judges who should play, by their proactive approach, a crucial role in the proceedings concerning situations of serious interpersonal conflicts existing within families.
III. Conclusion
In light of the above, the Czech Government believes that they have duly executed the Court’s judgments in the cases of Bergmann v. the Czech Republic and Prodělalová v. the Czech Republic.
[1] Payment of just satisfaction will be dealt with separately.
[2] According to sections 2 and 11 of Act No. 202/2012 on Mediation, an official mediator is a mediator registered in the official list of mediators.
[3] A seminar focused on the family law which is destined for, among others, the child care judges was held at the Judicial Academy in January 2012. The next seminar of the same kind is scheduled to take place in January 2013 and should include the issues related to the Court’s judgments at hand.
Full & Egal Universal Law Academy