Rezoluția CM/ResDH(2013)218 Două cauze împotriva Republicii Cehe Executarea hotărârilor Curții Europene a Drepturilor Omului Cerere n Cauza Hotărârea Determinativului 23848/04 WALLOVÁ ȘI WALLA 26/10/2006 26/03/2007 23499/06 HAVELKA ȘI ALTE hotărâri 21/06/2007 21/09/2007 (adoptată de Comitetul de Miniștri la 6 noiembrie 2013, cu ocazia celei de-a 1183-a ședințe a delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârile finale transmise de Curte Comitetului în aceste cauze și încălcările constatate care reamintesc obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare care au invitat guvernul din statul pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligației respective După ce a examinat bilanțul de acțiune furnizat de guvern indicând măsurile adoptate în vederea executării hotărârilor, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2013)542 [1] și asigurându-se că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1), DECLAMENTUL PE CARE își îndeplinește funcțiile în temeiul articolului 46 alineatul (2) din Convenția în aceste cazuri și DECIDE d.n.n.: examinarea. Execution of the judgments of the European Court of Human Rights in cases No. 23848 04/ Wallová and Walla v. the Czech Republic and No. 23499/06 Havelka and others v. the Czech Republic Consolidated action report submitted by the Czech Government on 10 May 2013 (numai în limba engleză) This consolidated action report intends to provide the Committee of Ministers with a comprehensive summary of both general and individual measures taken by the Czech Republic following the two above mentioned judgments of the European Court of Human Rights (hereinafter This report sumarises informations from all previous reports of the government of the Czech Republic to the Committee of Ministers raported to the implementation of the two judgments, and suplement such informations with the latest developments both in terms of general Measures aswell as the current situation of the aplicants and their familias. I.GENERAL MEASures A. DISSEMINATION OF INFORMATII ABOUT THE JUDGMENTS The authorities involved in the cases were duly informad about the judgments and were provided with their translations. Besides this standard procesdure, information initiative at a broader spectrom of addressees were launched. In February 2010, the Ministry of Justice simte un circular letter to presidents of all regional and districts scurts. The letter summarised the content of the judgments, highlighted the principles contained therein and implications arising for the Czech Republic, especiality for the judiciary. The letter încurajează national scurts to folow the principles of the two Court judgments, reminded them of their important rolle in implementing them, and requested feedback. [2] National Scurts Generally plied that they had already been made aware of the principles settleing to the two judgments and that they do not tend to application the law rigodly and without to the preservation of mutual bonds between children and their parts. Further informations and advice were provided at the level of municipalities and public administration. The Ministry of Labour and Social Affairs issued a Guidance Note of 1 November 2007, which was distributed to all regional and municipal authorities dealing with social and legal protection of children. The Guidance Note examines the Havelka judgment in detail and highlights the problematic aspects of dogmatic Practice identified by the Court. [3] In February 2009, the Recommendation for Municipalities and Towns for Prevention of Creation or Enlargement of Socially Excluded Comunities with Emphasis on Safety of Housing Needs issued and diseminated. This document represents a handbook of good practices jointly drawn up by the Ombudsman, the Ministry of Interior and other content authorities. [4] In November 2010 and January 2011, the Ministry of Labour and Social Affairs organizad trening/seminars for of of of social and legal protection of children (hereinafter În January 2011, Academia Judiciară organizează un proces de recreere a sistemului juridic al instituțional care in the new Civil Code. Throughout the time period, the Ministry of Justice organizad various seminars and trening on general measures resulting from the two judgments. B. Național acțiune PLANS AND STRATEGIES Complementation of the two Court judgments was also carried out within a broader context of the transformation of care for vulnerable children in the Czech Republic. By Resolution No. 883 of 13 July 2009, the Government of the Czech Republic approved a National Action plan for Transformation and Unification of the Vulnerable Children Care System for the Period of 2009 to 2011 [ This interdepartments NAP defined key activities care se referă la improvements in care for vulnerable children. Its particular aims are, inter alia , improvement of quality and accessibility of such care, individualizare and unification of the approach of institutions, and also a decrease in a number of children placed in institutional care by means of emphasising prevention and support services. The NAP identifică problema investițiilor de children outside of their familiares and understands it as a compex issues that can be cableingly resolved only by comprehensive and interdepartmental measures. [5] In their Resolution No. 4 of 4 January 2012, the government adopted the National Strategy for the Protection of the Rights of Children . [5] In the Right of Childhood. Acest document a fost followed by the National Action Plan for Fulfilling the National Strategy for the Protection of the Rights of Children for the Period from 2012 to 2015 which was adopted by Resolution No. 258 on 11 April 2012. These conceptual documents aim, interalia , at initiating further activities of the authorities in the context of the support for children at risk, highlighting the protection of family life and the reform of the institutional framework of institutional care of vulnerable children provided by the authorities. C. ACȚIUNE PLANUL ON THE TWO JUDGMENTS on 7 decembrie 2010, the government adopted Rezolution No. 882 by which they approved a specific action plan placed directly at the implementation of the two judgments of the Court. The action plan is called General Measures of Execution of the Judgments of the European Court of Human Rights Acest plan de acțiune trebuie să fie under the auspicies of the more general NAP menționated above. The action plan lists specials for amendments of legislation, as well as other means placed at pozitiv change of practices of scurts and other authorities involved, inclusivding legislative amendments explitly prohibiting the insertion of a child into institutional care for inadequate hereg conditions and economic situation of his/her parintis and emphasising the temporary nature of institutional care (see below, Chapter on legislative measures). By their Resolution No. 550 of 19 July 2012, the government approved a report on the fulfilment of the tasseks contained in this action plan, and ordered the Minister of Labour and Social Affairs to distribute this report all regional and municipal authorities. This report contents a detailed overview of ligislative and non-legislative general measures which were being taken by various ministries, inclusiv the Ministry of Labour and Social Affairs, the Ministry of Regional Development, the Ministry of Justice, the Ministry of Education, the Ministry of Health, and the Ministry of Interior. The Measures taken covered, interalia , the following areas: semnificant amendments to the Law on Social and Legal Protection of Children as well as to other laws raported to institutional care and the protection of children (see below, Chapter on legislativ Measures); trening/seminars for judges, the OSLPC staff, and NGOs on the Court D. LEGISLATIVUL MEASURI The new Civil Code explicitly condimentate that cannot per se be a reason for the pendidiary measure after the exhaustion of other noted that the new Civil Code recognises institutional care as a subsidiary measure after the exhaustion of other alternative. The bestst of the child is of primary considetion. For further details on legalation of institutional care, see Sections 971 to 975 of the new Civil Code. Amendamentul nr. 401/2012 of the Law No 359/99 on Social and Legal Protection of Children and of other came into force on 1 January 2013. Acest lucru este necesar pentru ca OSLPC să includă în moțiuni requesting institutional care that the reasons for filing such a motion are not hyseg conditions and the material situation of parints; broadens the tools based on which the social workers and scurts can intervene into family affairs without the necessity of taking a child into institutional cari; emfasises the protection of family and natural bonds; introduces new methods to the work of social workers (assessment of the chesment of the child inclusding in co-operation with NGOs; drafting of an individual plan for the child; organizationing, possibly in all cases, case speciale conference for stakeholders, inclusiv părinților și representatives of hGOs; drafing institution of an individual plan for the child; possibly in allling in all. The amendment also focuses on the processing of the standardisation of the OSLPC astfel încât aceste oficii au fost adequately materiality and personally equipped. It should also be noted that the amendment sets out conditions for fuctioning of centres for children requiring immediate help, emphasising the family and the temporary and emergency nature of children. [8] Amendament No. 401/2012 also made semnificant changes to the Family Act (Law No. 94/1963). In particular, it is now explicitly prohibited for a scurt to order institutional care of a child solely for inadequate housig conditions or financial situation of his/her parinti. Furtermore, a scurt can order institutional care for a maxim of three years with a possibility of extending such a period by a new decision for up to three years. When ordering such care, the court is also obligad to consider other lasas severe alternative, i.e. Foster parinti and care in centre for children requiring immediate help. Când tribunalul a decis fiecare șase month-uri. Amendamentul nr. 134/2006 of 14 March 2006 of the Law on Social and Legal Protection of Children impuned on the competent public authorities a duty to provide parintes, after a removal of children from their care, immediate and comprehensive supports with a view to efectivly reunifying the family. This task, inter alia , inclusiv a duty to asistent parinti when applicacying for financial and other kinds of material benefits they are entitled to within the scheme of State Social support. Amendament No. 295/2008 of 16 July 2008 of the Rules of Civil Procedure strengthened the right of the child to be heard, in this context in civil scurt procesing, [9] Limiting the possibility of a guardian or the authorities to take up such rolle. Furthermere, based on the Amendment No. 404/2012 of 24 October 2012 of the Rules of Civil Procedure, the child can be accompanied by a person of his/herchoice throughout the hearing. E. REFELECTION OF THE JUDGMENTS IN DOMETIC CASE LAW The doua judgments had been presented to all judges of the Constitutional Court at its plenary session. Consequently, both the Wallová and Walla judgment and the Havelka and others judgment and the principles contained therein became, indeed, esential reference puncts for the Constitutional Court in its case law. In several cases, the Constitutional Court quashed decisions of lower scurts that could have resulted in a long-term separation of a child from his/her parts, while referring to the two judgments and/or the principles contained therein (see decisions of 13 April 2010 ref. no. II. ÚS 485/10, of 10 October 2007 ref. no. II. ÚS 838/07, of 2 April 2009 ref. no. 1945/08 and of 20 July 2010 ref. no. IV. ÚS 2244/09). [10] Furtermore, on 8 decembrie 2010, the Supreme Court issued an interpretative opinie ref. no. Cpjn 202/2010 on Decision Making of Courts in Cases Concerning the Impozition of Institutional Care due to Economic Problems of a Family, in particular Bad Housing Conditions. In aceasta opinie interpretativă, the Supreme Court, referring to the two judgments of the Court, highlighted that mainomic problems of a family, in particular horing problems, canot per se a reason for placing a child into institutional care. F. FURTHER MEASS In August 2009, the government adopted a new regulation granting support for cladire of financially adorabil flats for ent for persons with a low income or with other problems, who are not pot to afford horaing based on free market prices. Furtermore, in the 2011 Programme on the Construction of Subsidised Flats, the condition that vulnerabil familiars whose children may bey or may have been placed into institutional care for the reason of inadequate heurg should havery over other familiars when semning a tenancy agreement. În plus, The Ministry of Regional Development Normally organizations information seminars on programs on subsidised houseg. II. INDIVIDUAL MEASURI A. THE HAVELKA AND Others CASE In reaction to the Court.s judgment and further to the standard methods of implementation of the Court as judgments, the competent authorities initiated long-term close co-operation with Mr. Havelka placed at assisting him in creating conditions that would enable him to acapatcare over his three children, in particular in terms of securing adequate h verag and regular job. [11] The government, for example, aplaned one-off allowance to cover his travel expenses for visising his children. Însă, from the very beginning, these eforts have been negatively influented by the aplicant distrust and animosity towards the authorities, as well as as aparent lack of active co-operation. Throughout the relevant period, the administrativ authorities have not often been, notwithstanding their active approach, aware of the applicicants permanent residence address and his whereabouts in general. The applicant has not taken advantage of particular means provided by Czech law, such as the above-mentioned travel expose allowance or a motion for the institutional care of his children. [12] It should be, însă, pointed out that the institutional care was, indeed, subject to the normal review proces under the supports of the Family Act in order to assess whether the conditions for a further continuarea of the institutional care still existăd. [13] The President of the Court has been duly taken into account. Throughout the relevant period, the children thing towards the possibility of their return to their father has been rather negative. Această situație se bazează pe factori de decizie pentru a determina posibilitatea ca acestea să se întoarcă la fatherias custody, especially taking into consideration the children mais age and their aability to expres their own opinie. [14] The applicant has mentained only sporadic personal contact with his children, seeing them almost exclusively during holidays which the children spent at the applications sister. Însă, he did maintain a relatively frequent telefonic contact with them. Thus, on the one hand, emotional bonds between the applicant and is children have been preserved but, on the other hand, it has not been unfortunately posibil to ensure the return of the children from institutional care to the appicants care despite the intens ongoing fors of the authorities. The reunification of the aplicant and his children could have been jéopardised by the children mais moment removal from their current environment. The decision on the return of the children must take into account the children maists and needs to be preceded by efectiv improvements of the applicicants account to guarantee the bazic needs of the children and also by a change in the children The authorities have, indeed, a pozitiv obligation to asist the applicant and to take measures that will facilitate and allow his reunification with his children. Însă, such measures can only be succesorfully and timely implemented if the aplicant does not remain completely inactive. The government is of the parend that the authorities have made semnificativ fors to remedy the situation but its efectivness has been unfortunately reducted by various factors, inclusivding the applications lack of interest and co-operation. Toate cele trei children are already reached the age of majority and thus it is primarily up to them to decide whether or not or how often they wish to see their father. Two of them live together in an apartment in the children If they feel the need to seir father, they have his contact details and can visising it without restrictions. According to recent information, only one child has sourally vizited Mr Havelka in Praga. B. The WALLOVÁ AND WALLA CASE State and municipal authorities, in co-operation with NGOs, have been closely involved in comprehensive asistance to the aplicants and have, indeed, taken numerous steaps with the am of creating conditions for a reunification of the two youngest children with their biological parinti. [15] Rules have been set up for mutual communication between all interested partis and the authorities organizated numerous mietings of them [16] and provided them with advice and asistence. These countings were appreated bot by Mrs Wallová and by the Foster parinti of the two youngest children. [17] There has also been written communication between the foster and biological parts in order to keep the biological parintii informed of their children An expert in child psihology was supleed. It should also be noted that the children mais reaction to return to their biological parinti was assessad on a regulal bazis. Însă, mutual bonds between Mrs Wallová and the children had been already severy damaged and the children had created extrememy strong ties with the moster parinti and other children in their care. Throughout the years, doamna Wallová has been in sporadic written contact with them. Thus, the question of reunification, or Merely a personal mieting between Mrs Wallová and her children, represents an emotionally traumatising issue for all persons involved. The media publicity of the case made it even more difficult. Mai mult, Mrs Wallová has been suffering from serious health problems. As a result, doamna Wallová herself has been uncertain whether to pure return of the two youngest children to her care and later aparently even decided not to pure such option, taking into account the rest of the children. The two ost children reached the age of majority a long time ago. The third child is in Mrs. Wallovas care and will reach the age of majority this year; they live together in an asylum home at at present. The two youngest children remain in foster părints Uită-te la latest developments, la Foster parinti a avut talked to the children about their biological parinti, emphasising that their parintii inca mai iubesc them. Foster parintii au avut also allowed the children to go on holidays with their biological parinti. Însă, the children do not wish to pure such an option. Infact, the children do not wish to send them even a letter or an e-mail. It should also be pointed out that the biological parinti are not in personal contact with their two youngest children. They do not seem to be interested in their upbringing, notwithstanding the proactive involvement of the authorities and the foster parts in this privition. Although the children have the possibility to contact their biological parinti, they are are reluctant to do so. Despite the semnificant forcess of the authorities and the good faith of all persons involved, the return of the two youngest children to their mother. It is worth mentioning that the impediment preventing the children from returning to their parinti are no longer raported to inadequate hraine or the material situation of Mrs Wallová. [19] III. CONCLUZION A number of general measures of execution of the two judgments of the Court have been taken, be it the disemination of the judgments and awareness strugurig of both administrative and judicial authorities, the reselection of the principles underlying the two judgments in both the domestic legisation and case or more complex action placed more generally at children at risk or more specially at the implementation of the two judgments. The government is of the opinie that these measures can be considered sucient in light of their obligation stemming from Article 46 § 1 of the convention. As to individual measures, all the reports of the government demonstrated that the authorities make complex and calificed steaps including active asistence and help to the aplicants so that their children can be returned to their care. Unfortunately, obstacole represented both by the obiective factors and personal assessment or lack of co-operation from the aplicants have made the return of the children imposibil. The aplicants themselves seem appeed with the current situation and no longer pure any change, taking into account the interest of their children. Prin urmare, despite the lack of moștenitor reunification of all of the children and their parintis, it can be concluded that the Czech mais authorities reasonably foulied their obligation arising from the implementation of the two judgments of the Court. The Government of the Czech Republic thus conclusions that all the necessary measures to execute the judgments have been taken. [1] Numai pentru mai multe detalii, see the additional report of the government of 30 June 2010. [3] For more details, see the aditional report of the government of 2 October 2009. [4] Ibid. [5] for more details, see the additional report of the government of 2 October 2009. [6] Section 971(3) of the new Civil Code [7] Pentru example, it sets out a limita of cuptor children for which one staff member of such centre can be responsability. It also limitats the possibility of moving a child from one centre to another so that the child is not far from his/her parinti. Mai mult, centre for children requiring immediate help are obligad to cooperate with the childs family and to provide the family with asistence in handling matters quiring the child in order to ensure rapid reunification of the family. [8] The amendment lays down explict time limits for staying in such centres. [9] Secțiunea 100(4) of the Rules of Civil Procedure. [10] Pentru more details, see the adițional reports of the government of 2 October 2009 and of 30 June 2010. [11] For more details, see the adițional report of the government of 27 February 2008. [12] For more details, see the additional report of the government of 21 November 2008. [13] See Section 46(5) of the Family Act; for more details on the standard review process of the two cases, see the additional report of the government of 2 October 2009. [14] for more details, see the report of the government of 27 February 2008. [15] See previous reports of the government on the implementation of the judgment [16] A direct mieting between doamna Wallová and her children took place only unce; for details and problems encountered, see the additional report of the government of 21 November 2008. [17] See e.g. campure to the al doilea additional note of the government of 23 May 2008. [18] See the additional report of the government of 27 February 2008. [19] Pentru more details, see the reports of the government mentioned in the part dedicated to the Havelka and others case.
Résolution CM/ResDH(2013)218
Deux affaires contre République tchèque
Exécution des arrêts de la Cour européenne des droits de l’homme
Requête n
o
Affaire
Arrêt du
Définitif le
23848/04
26/10/2006
26/03/2007
23499/06
21/06/2007
21/09/2007
(adoptée par le Comité des Ministres le 6 novembre 2013,
lors de la 1183e 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 transmis par la Cour au Comité dans ces affaires 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
[1]
)
;
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
in cases No. 23848/04 – Wallová and Walla v. the Czech Republic
and No. 23499/06 – Havelka and others v. the Czech Republic
Consolidated action report submitted by the Czech Government on 10 May 2013
(anglais uniquement)
This consolidated action report intends to provide the Committee of Ministers with a comprehensive summary of both general and individual measures taken by the Czech Republic following the two above
‑
mentioned judgments of the European Court of Human Rights (hereinafter “the Court”). This report summarises information from all previous reports of the government of the Czech Republic to the Committee of Ministers related to the implementation of the two judgments, and supplements such information with the latest developments both in terms of general measures as well as the current situation of the applicants and their families.
The relevant authorities involved in the cases were duly informed about the judgments and were provided with their translations.
Besides this standard procedure, information initiatives aimed at a broader spectrum of addressees were launched. In February 2010, the Ministry of Justice sent out a circular letter to presidents of all regional and district courts. The letter summarised the content of the judgments, highlighted the principles contained therein and implications arising for the Czech Republic, especially for the judiciary. The letter encouraged national courts to follow the principles of the two Court judgments, reminded them of their important role in implementing them, and requested feedback.
[2]
National courts generally replied that they had already been made aware of the principles corresponding to the two judgments and that they do not tend to apply the law rigidly and without concern to the preservation of mutual bonds between children and their parents.
Further information and advice were provided at the level of municipalities and public administration. The Ministry of Labour and Social Affairs issued a Guidance Note of 1 November 2007, which was distributed to all regional and municipal authorities dealing with social and legal protection of children. The Guidance Note examines the Havelka judgment in detail and highlights the problematic aspects of domestic practice identified by the Court.
[3]
In February 2009, the Recommendation for Municipalities and Towns for Prevention of Creation or Enlargement of Socially Excluded Communities with Emphasis on Safeguarding of Housing Needs was issued and disseminated. This document represents a handbook of good practices jointly drawn up by the Ombudsman, the Ministry of Interior and other competent authorities.
[4]
In November 2010 and January 2011, the Ministry of Labour and Social Affairs organised training/seminars for offices for social and legal protection of children (hereinafter “the OSLPC”) and NGOs on the principles contained in the two judgments and on follow-up measures, including on the basic principles of the preventive work with vulnerable families.
In January 2011, the Judicial Academy organised training for judges on legal regulation of institutional care in the new Civil Code.
Throughout the relevant time period, the Ministry of Justice organised various seminars and training on general measures resulting from the two judgments.
B. NATIONAL ACTION PLANS AND STRATEGIES
Implementation of the two respective Court judgments was also carried out within a broader context of the transformation of care for vulnerable children in the Czech Republic. By Resolution No. 883 of 13 July 2009, the Government of the Czech Republic approved a National Action Plan for Transformation and Unification of the Vulnerable Children Care System for the Period of 2009 to 2011 [“Národní akční plán k transformaci a sjednocení systému péče o ohrožené děti na období 2009 – 2011”] (hereinafter “the NAP”).
This interdepartmental NAP defined key activities relevant for improvements in care for vulnerable children. Its particular aims are,
inter alia
, the improvement of quality and accessibility of such care, individualisation and unification of the approach of relevant institutions, and also a decrease in a number of children placed in institutional care by means of emphasising prevention and support services. The NAP identifies the problem of placement of children outside of their families and understands it as a complex issue that can be correspondingly resolved only by comprehensive and interdepartmental measures.
[5]
In their Resolution No. 4 of 4 January 2012, the government adopted the National Strategy for the Protection of the Rights of Children – the Right of Childhood. This document was followed by the National Action Plan for Fulfilling the National Strategy for the Protection of the Rights of Children for the Period from 2012 to 2015 which was adopted by Resolution No. 258 on 11 April 2012. These conceptual documents aim,
inter alia
, at initiating further activities of the authorities in the context of the support for children at risk, highlighting the protection of family life and the reform of the institutional framework of institutional care of vulnerable children provided by the authorities.
On 7 December 2010, the government adopted Resolution No. 882 by which they approved a specific action plan aimed directly at the implementation of the two judgments of the Court. The action plan is called General Measures of Execution of the Judgments of the European Court of Human Rights – Prevention of the Removal of Children from Parents’ Care for Socioeconomic Reasons. This action plan falls under the auspices of the more general NAP mentioned above.
The action plan lists specific proposals for amendments of relevant legislation, as well as other means aimed at positive change of practices of courts and other authorities involved, including legislative amendments explicitly prohibiting the placement of a child into institutional care for inadequate housing conditions and economic situation of his/her parents and emphasising the temporary nature of institutional care (see below, chapter on legislative measures).
By their Resolution No. 550 of 19 July 2012, the government approved a report on the fulfilment of the tasks contained in this action plan, and ordered the Minister of Labour and Social Affairs to distribute this report among all regional and municipal authorities. This report contains a detailed overview of relevant legislative and non-legislative general measures which were being taken by various ministries, including the Ministry of Labour and Social Affairs, the Ministry of Regional Development, the Ministry of Justice, the Ministry of Education, the Ministry of Health, and the Ministry of Interior. The measures taken covered,
inter alia
, the following areas: significant amendments to the Law on Social and Legal Protection of Children as well as to other laws related to institutional care and the protection of children (see below, chapter on legislative measures); training/seminars for judges, the OSLPC staff, and NGOs on the Court’s judgments, the key principles contained therein, and their reflection in national legislation (see supra, chapter on dissemination of information); and facilitation of possibilities for vulnerable families to be provided with subsidised housing (see below, chapter on further measures).
The new Civil Code explicitly stipulates that “inadequate housing conditions and material situation of parents of the child (...)”
[6]
cannot per se be a reason for the court’s decision on institutional care (...).” It should be further noted that the new Civil Code recognises institutional care as a subsidiary measure after the exhaustion of other alternatives. The best interest of the child is of primary consideration. For further details on legal regulation of institutional care, see Sections 971 to 975 of the new Civil Code.
Amendment No. 401/2012 of the Law No. 359/1999 on Social and Legal Protection of Children and of other relevant laws came into force on 1 January 2013. This far-reaching amendment obliges the OSLPC to include in its motion requesting institutional care that the reasons for filing such a motion are not housing conditions and the material situation of parents; broadens the tools based on which the social workers and courts can intervene into family affairs without the necessity of taking a child into institutional care; emphasises the protection of family and natural bonds; introduces new methods to the work of social workers (assessment of the situation of the child including in co-operation with NGOs; drafting of an individual plan for the protection of the child; organising, possibly in all cases, case specific conferences for relevant stakeholders, including parents and representatives of healthcare institutions and schools, before filing a motion for taking a child into institutional care, etc.).
The amendment also focuses on the process of the standardisation of the OSLPC so that these offices are adequately materially and personally equipped. It should also be noted that the amendment sets out precise conditions for functioning of centres for children requiring immediate help, emphasising the family “like” nature of such centres
[7]
and the temporary and emergency nature of children’s stay therein.
[8]
Amendment No. 401/2012 also made significant changes to the Family Act (Law No. 94/1963). In particular, it is now explicitly prohibited for a court to order institutional care of a child solely for inadequate housing conditions or financial situation of his/her parents. Furthermore, a court can order institutional care for a maximum of three years with a possibility of extending such a period by a new decision for up to three years. When ordering such care, the court is also obliged to consider other less severe alternatives, i.e. foster parents and care in centres for children requiring immediate help. When the court does order institutional care, it must still review the reasons for such a decision every six months.
Amendment No. 134/2006 of 14 March 2006 of the Law on Social and Legal Protection of Children imposed on the competent public authorities a duty to provide parents, after a removal of children from their care, immediate and comprehensive assistance with a view to effectively reunifying the family. This task,
inter alia
, includes a duty to assist parents when applying for financial and other kinds of material benefits they are entitled to within the scheme of State social support.
Amendment No. 295/2008 of 16 July 2008 of the Rules of Civil Procedure strengthened the right of the child to be heard, in this context in civil court proceedings,
[9]
limiting the possibility of a guardian or the authorities to take up such role. Furthermore, based on the Amendment No. 404/2012 of 24 October 2012 of the Rules of Civil Procedure, the child can be accompanied by a person of his/her choice throughout the hearing.
The two judgments had been presented to all judges of the Constitutional Court at its plenary session. Consequently, both the Wallová and Walla judgment and the Havelka and others judgment and the principles contained therein became, indeed, essential reference points for the Constitutional Court in its case law. In several cases, the Constitutional Court quashed decisions of lower courts that could have resulted in a long-term separation of a child from his/her parents, while referring to the two judgments and/or the principles contained therein (see decisions of 13 April 2010 ref. no. II. ÚS 485/10, of 10 October 2007 ref. no. II. ÚS 838/07, of 2 April 2009 ref. no. 1945/08 and of 20 July 2010 ref. no. IV. ÚS 2244/09).
[10]
Furthermore, on 8 December 2010, the Supreme Court issued an interpretative opinion ref. no. Cpjn 202/2010 on Decision Making of Courts in Cases Concerning the Imposition of Institutional Care due to Economic Problems of a Family, in particular Bad Housing Conditions. In this interpretative opinion, the Supreme Court, referring to the two judgments of the Court, highlighted that “economic problems of a family, in particular housing problems, cannot per se be a reason for placing a child into institutional care”.
In August 2009, the government adopted a new regulation granting support for construction of financially affordable flats for rent for persons with a low income or with other problems, who are not able to afford housing based on free market prices. Furthermore, in the 2011 Programme on the Construction of Subsidised Flats, the condition that vulnerable families whose children may be or may have been placed into institutional care for the reason of inadequate housing should have priority over other families when signing a tenancy agreement. In addition, the Ministry of Regional Development regularly organises information seminars on programmes on subsidised housing.
A. THE HAVELKA AND OTHERS CASE
In reaction to the Court’s judgment and further to the standard methods of implementation of the Court’s judgments, the competent authorities initiated long-term close co-operation with Mr Havelka aimed at assisting him in creating conditions that would enable him to assume care over his three children, in particular in terms of securing adequate housing and regular job.
[11]
The government, for example, arranged one-off allowance to cover his travel expenses for visiting his children.
However, from the very beginning, these efforts have been negatively influenced by the applicant’s distrust and animosity towards the authorities, as well as his apparent lack of active co-operation. Throughout the relevant period, the administrative authorities have not often been, notwithstanding their active approach, aware of the applicant’s permanent residence address and his whereabouts in general. The applicant has not taken advantage of particular means provided by Czech law, such as the above-mentioned travel expense allowance or a motion for the termination of the institutional care of his children.
[12]
It should be, however, pointed out that the institutional care was, indeed, subject to the regular review procedure under the relevant provisions of the Family Act in order to assess whether the conditions for a further continuation of the institutional care still existed.
[13]
The president of the respective court responsible for the regular review of the situation of Mr Havelka’s children confirmed that the judgment of the Court has been duly taken into account. Throughout the relevant period, the children’s attitude towards the possibility of their return to their father has been rather negative. This has also been a relevant factor for determining the possibility of their return to the father’s custody, especially taking into consideration the children’s age and their ability to express their own opinion.
[14]
The applicant has maintained only sporadic personal contact with his children, seeing them almost exclusively during holidays which the children spent at the applicant’s sister’s home. However, he did maintain a relatively frequent telephonic contact with them. Thus, on the one hand, emotional bonds between the applicant and his children have been preserved but, on the other hand, it has not been unfortunately possible to ensure the return of the children from institutional care to the applicant’s care despite the intensive ongoing efforts of the authorities.
The reunification of the applicant and his children could have been jeopardised by the children’s instant removal from their current environment. The decision on the return of the children must take into account the children’s best interests and needs to be preceded by effective improvements of the applicant’s ability to guarantee the basic needs of the children and also by a change in the children’s attitude towards the applicant. The authorities have, indeed, a positive obligation to assist the applicant and to take measures that will facilitate and allow his reunification with his children. However, such measures can only be successfully and timely implemented if the applicant does not remain completely inactive. The government is of the opinion that the authorities have made significant efforts to remedy the situation but its effectiveness has been unfortunately reduced by various factors, including the applicant’s lack of interest and co-operation.
All three children have already reached the age of majority and thus it is primarily up to them to decide whether or not or how often they wish to see their father. Two of them live together in an apartment in the children’s home and the third child rented his own apartment. Two of them are students with very good results, and the third one is employed. If they feel the need to see their father, they have his contact details and can visit him without restrictions. According to recent information, only one child has occasionally visited Mr Havelka in Prague.
B. THE WALLOVÁ AND WALLA CASE
State and municipal authorities, in co-operation with NGOs, have been closely involved in comprehensive assistance to the applicants and have, indeed, taken numerous steps with the aim of creating conditions for a reunification of the two youngest children with their biological parents.
[15]
Rules have been set up for mutual communication between all interested parties and the authorities organised numerous meetings of them
[16]
and provided them with advice and assistance. These meetings were appreciated both by Mrs Wallová and by the foster parents of the two youngest children.
[17]
There has also been written communication between the foster and biological parents in order to keep the biological parents informed of their children’s recent situation and in order to develop a mutual trust between the two families.
[18]
An expert in child psychology was appointed. It should also be noted that the children’s reaction to return to their biological parents was assessed on a regular basis.
However, mutual bonds between Mrs Wallová and the children had been already severely damaged and the children had created extremely strong ties with the foster parents and other children in their care. Throughout the years, Mrs Wallová has been in sporadic written contact with them. Thus, the question of reunification, or merely a personal meeting between Mrs Wallová and her children, represents an emotionally traumatising issue for all persons involved. The media publicity of the case made it even more difficult. Moreover, Mrs Wallová has been suffering from serious health problems. As a result, Mrs Wallová herself has been uncertain whether to pursue return of the two youngest children to her care and later apparently even decided not to pursue such option, taking into account the best interest of the children.
The two oldest children reached the age of majority a long time ago. The third child is in Mrs Wallova’s care and will reach the age of majority this year; they live together in an asylum home at present. The two youngest children remain in foster parents’ care. The competent OSLPC still controls the upbringing of the children by their foster parents. As regards the latest developments, the foster parents have talked to the children about their biological parents, emphasising that their parents still love them. The foster parents have also allowed the children to go on holidays with their biological parents. However, the children do not wish to pursue such an option. In fact, the children do not wish to send them even a letter or an e-mail. It should also be pointed out that the biological parents are not in personal contact with their two youngest children. They do not seem to be interested in their upbringing, notwithstanding the proactive involvement of the authorities and the foster parents in this regard. Although the children have the possibility to contact their biological parents, they are reluctant to do so.
Despite the significant efforts of the authorities and the good faith of all persons involved, the return of the two youngest children to their mother’s care seems rather unlikely. It is worth mentioning that the obstacles preventing the children from returning to their parents are no longer related to inadequate housing conditions or the material situation of Mrs Wallová.
[19]
A number of general measures of execution of the two judgments of the Court have been taken, be it the dissemination of the judgments and awareness raising of both administrative and judicial authorities, the reflection of the principles underlying the two judgments in both the domestic legislation and case law or more complex action plans aimed more generally at children at risk or more specifically at the implementation of the two judgments. The government is of the opinion that these measures can be considered sufficient in light of their obligation stemming from Article 46 § 1 of the Convention.
As to individual measures, all the reports of the government demonstrated that the authorities made complex and qualified steps including active assistance and help to the applicants so that their children can be returned to their care. Unfortunately, obstacles represented both by the objective factors and personal attitude or lack of co-operation from the applicants have made the return of the children impossible. The applicants themselves seem appeased with the current situation and no longer pursue any change, taking into account the interest of their children. Therefore, despite the lack of successful reunification of all of the children and their parents, it can be concluded that the Czech Republic’s authorities reasonably fulfilled their obligation arising from the implementation of the two judgments of the Court.
The Government of the Czech Republic thus concludes that all the necessary measures to execute the judgments have been taken.
[1]
Anglais uniquement.
[2]
For more details, see the additional report of the government of 30 June 2010.
[3]
For more details, see the additional report of the government of 2 October 2009.
[4]
Ibid.
[5]
For more details, see the additional report of the government of 2 October 2009.
[6]
Section 971(3) of the new Civil Code
[7]
For example, it sets out a limit of four children for which one staff member of such centre can be responsible. It also limits the possibility of moving a child from one centre to another so that the child is not far from his/her parents. Moreover, centres for children requiring immediate help are obliged to cooperate with the child’s family and to provide the family with assistance in handling matters concerning the child in order to ensure rapid reunification of the family.
[8]
The amendment lays down explicit time limits for staying in such centres.
[9]
Section 100(4) of the Rules of Civil Procedure.
[10]
For more details, see the additional reports of the government of 2 October 2009 and of 30 June 2010.
[11]
For more details, see the additional report of the government of 27 February 2008.
[12]
For more details, see the additional report of the government of 21 November 2008.
[13]
See Section 46(5) of the Family Act; for more details on the regular review process of the two cases, see the additional report of the government of 2 October 2009.
[14]
For more details, see the report of the government of 27 February 2008.
[15]
See previous reports of the government on the implementation of the judgment.
[16]
A direct meeting between Mrs Wallová and her children took place only once; for details and problems encountered, see the additional report of the government of 21 November 2008.
[17]
See e.g. enclosure to the second additional note of the government of 23 May 2008.
[18]
See the additional report of the government of 27 February 2008.
[19]
For more details, see the reports of the government mentioned in the part dedicated to the
Havelka and others
case.