Published on 24 April 2023
FIRST SECTION
Application no. 39980/22
Beáta JANOČKOVÁ and Daniel KVOCERA against Slovakia
lodged on 11 August 2022
communicated on 5 April 2023
SUBJECT MATTER OF THE CASE
The first applicant is the mother of the second applicant (born in 2014) and the two allege that they have not seen each other since 2 September 2018, apart from for one hour during a supervised visit on 23 February 2021.
Against the background of complex litigation around the parents’ rights and duties in respect of the second applicant, which received some media coverage at the national level, the present application concerns the length and effectiveness of proceedings for the enforcement of an urgent interim measure (neodkladné opatrenie) regulating the first applicant’s parental contact with the second applicant, the authorities’ alleged failure to take the necessary measures to ensure that contact and the effectiveness of the domestic remedy provided by the Constitutional Court.
The enforcement proceedings have been ongoing since November 2018. On 31 March 2022 the Constitutional Court dismissed the applicants’ constitutional complaint in this matter (I. US 192/2022), finding it premature since only four months had passed since the Constitutional Court’s judgment (I. US 114/2021) in response to the applicants’ earlier complaint. In this judgment the Constitutional Court had found a violation of their right to respect for family life and to a hearing within a reasonable time before the enforcement court, ordered the enforcement court to act without further delay and awarded the applicants damages.
According to the applicants’ submissions, the aforementioned constitutional judgment has had no preventive effect and the proceedings are still ongoing.
The case raises issues under Articles 8 and 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Having regard to all the circumstances, in particular the preventive and compensatory effect of the redress afforded by the Constitutional Court (I. US 114/2021), can the applicants still claim to be victims of the alleged violation of their right to respect for family life under Article 8 of the Convention in relation to the period covered by the Constitutional Court’s judgment?
2. As regards the period subsequent to the Constitutional Court’s judgment, have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
In particular, in view of the alleged lack of preventive effect of the Constitutional Court’s judgment, was a repeat complaint to that court an effective remedy within the meaning of this provision (see, mutatis mutandis, Kuppinger v. Germany, no. 62198/11, § 137, 15 January 2015 and Becová v. Slovakia, no. 23788/06, 18 September 2007, with further references)?
3. Has there been a violation of the applicants’ right to respect for their family life, contrary to Article 8 of the Convention?
In particular, given the length of the enforcement proceedings during which the applicants have only had limited contact, and the role inherently played by the passage of time, have the domestic authorities complied with their positive obligations with regard to respect for the applicants’ family life under Article 8 of the Convention (see Ribić v. Croatia, no. 27148/12, § 92, 2 April 2015, with further references)? In addition, having regard to all the circumstances, including the particularly strained relationship between the first applicant and the child’s father, have the domestic authorities discharged their positive obligations to ensure the effective exercise of the first applicant’s contact rights and to establish a meaningful relationship between the applicants (Malec v. Poland, no. 28623/12, §§ 74-78, 28 June 2016)?
4. In the light of the Court’s case-law (Bergmann v. the Czech Republic, no. 8857/08, §§ 45-46, 27 October 2011; Kuppinger, cited above), did the applicants have at their disposal an effective domestic remedy for their complaints raised under Article 8 of the Convention, as required by Article 13 of the Convention?