Communicated on 23 October 2018
FIRST SECTION
Applications nos. 72064/17 and 19453/18
Veronika MARCOSKI against the Czech Republic
and Veronika MARCOSKI and Lukáš Nicolas RATH against the Czech Republic
lodged on 2 October 2017 and 11 April 2018 respectively
SUBJECT MATTER OF THE CASE
The first applicant, Mrs Veronika Marcoski, is the mother of the second applicant, Lukáš Nicolas Rath.
The applications concern:
(1) alleged violation of the right to respect for family life of the applicants (mother and her son) on account of a long disruption of any contact between them and a failure of the courts to set a reasonable time frames and conditions for their contact (Article 8 of the Convention);
(2) alleged violation of the first applicant’s right to equality of arms on the account of the representation of the second applicant by the Office for International Legal Protection of Children in the custody proceedings (Article 6 § 1 of the Convention);
(3) alleged violation of the applicants’ right to access to court on the account of the refusal of the Constitutional Court to review the applicants’ complaint on the merits (Article 6 § 1 of the Convention).
QUESTIONS tO THE PARTIES
1. Have the interim measure of 22 December 2016 according to which the second applicant was trusted into his father’s exclusive care without any visitation rights being set for the first applicant, and the subsequent developments in the case of the applicants, amounted to an interference with the applicants’ right to respect for their family life, taking into account notably the time frames and conditions set for the contact of the two applicants?
If so, has such interference been “in accordance with the law” and “necessary in a democratic society” in the interests of one of the aims permitted under paragraph 2 of that Article? In view of all the circumstances, has there been a violation of the applicants’ right to respect for their family life that encompasses a right to the mutual enjoyment by parent and child of each other’s company, contrary to Article 8 of the Convention?
2. Have the domestic authorities fulfilled their positive obligation under Article 8 of the Convention to act in a manner calculated to enable an existing family tie to develop, to take any measures that can be reasonably expected with a view of reunification of a child with his parent(s) and to ensure that any separation of a child from his parent does not last any longer then strictly necessary (see Sommerfeld v. Germany [GC], no. 31871/96, § 63, ECHR 2003‑VIII; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 140, ECHR 2010)?
3. Has the restriction of the contacts between the two applicants been of such nature that the family relations between a young child and his mother were effectively curtailed (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000‑VIII; Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I)?
4. Have the interim measure of 22 December 2016 and the subsequent developments in the applicants’ case been in the best interest of the child? Have the interests of the child been sufficiently taken into account (see Sahin v. Germany [GC], no. 30943/96, § 64, ECHR 2003‑VIII; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 169, ECHR 2000‑VIII)?
5. Has the approach of the Constitutional Court refusing to review the applicants’ complaint on the merits given rise to violation of the applicants’ right to access to court, contrary to Article 6 § 1 of the Convention?
6. Having regard to the applicants’ complaints under Article 6 § 1 of the Convention – which falls to be examined under Article 8 of the Convention – has the approach of the Constitutional Court given rise to a violation of the procedural requirements inherent to Article 8 to ensure proper respect for, inter alia, family life?
7. Have the applicants had a fair hearing in the custody proceedings in accordance with Article 6 § 1 of the Convention? In particular:
- has the principle of equality of arms been respected as regards to the representation of the second applicant by the Office for International Legal Protection of Children?
- has the first applicant been awarded a reasonable opportunity to present her case under the conditions that do not place her at a substantial disadvantage vis-à-vis the other party?
have there been sufficient guarantees that the Office for International Legal Protection of Children represented in the posterior custody proceedings the interests of the child and not those of his father?
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
1
72064/17
02/10/2017
Veronika MARCOSKI
04/08/1983
Prague
Czech, American
Tomáš SOKOL
2
19453/18
11/04/2018
Veronika MARCOSKI
04/08/1983
Prague
Czech, American
Lukáš Nicolas RATH
14/07/2015
Prague
Czech, American
David ZAHUMENSKÝ
Full & Egal Universal Law Academy