Translation © European Roma Rights Centre. www.errc.org - Permission to re-publish this translation has been granted for the sole purpose of its inclusion in the Court ’ s database HUDOC.

In the case of Wallová and Walla v. the Czech Republic,

The European court of Human Rights (Section V) , sitting as a Chamber composed of:

P. Lorenzen, President ,

V. Butkevych,

M. Tsatsa-Nikolovska,

J. Borrego Borrego

R. Jaeger,

M. Villigier, judges ,

and C. Westerdiek, Section Registrar ,

Having deliberated in private on 2 October 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

On 26 July 2001, this judgment was voided by the Regional Court, which requested the Court of First Instance to supplement the evidence concerning the need for such an placement .

On the same day, the Regional Court upheld the judgment of 21 March 2002 on consent to the adoption of the youngest children.

In this decision, the court also found that the main problem underlying the entire proceedings was the lack of adequate housing for such a large family and the applicants ’ inability, particularly as a result of their poverty, to obtain such housing. As further problems appeared thereafter, it was difficult for the Constitutional Court to say whether the applicants were the irresponsible parents or whether they were unlucky and could not succeed, despite their efforts.

Subsequently, the competent social authority summoned the applicants to an interview and gave its consent to several stays of the older children (including during the weekends).

On 24 March 2005, they asked to be given the younger children.

At the same time, the director of the V. establishment informed the competent social authority that the applicant [the father] had acted vulgarly with him; and that therefore, he would no longer allow the older children to live with the family because he was convinced that such behaviour of the applicant had negative repercussions on their education.

This judgment acquired res judicata on 23 March 2006.

II. RELEVANT DOMESTIC LAW

Charter of Fundamental Rights and Freedoms

Code of Civil Procedure

Family Law No. 94/1963

Law No. 114/1988 on the powers of the authorities regarding social aid

Law No. 359/1999 on the social protection of the child

III. OTHER SOURCES

Committee on the Rights of the Child established by Article 43 § 1 of the Convention on the Rights of the Child

The Committee welcomes the information on the Policy Statement on measures to be taken relating to child and family welfare and on the preparation of a national programme of support to families with children. The Committee is concerned at the insufficient assistance and guidance given to parents in their child-rearing responsibilities for the upbringing and development of the child, resulting in numerous cases of custody procedures or in alternative care in institutions. The Committee is further concerned that preventive efforts and family counselling are inadequate and that placement in an institution may be a solution to social problems and crisis situations in the family.

The Committee notes the adoption of the Act of Residential Care in 2002, but is concerned that it has not addressed the full range of rights covered by the Convention. (...) The Committee welcomes the policy of deinstitutionalization, but remains deeply concerned by the increasing number of children placed in institutions by preliminary injunction and at the frequent use of this special measure, which can be revoked only after a lengthy and complex procedure. Furthermore, the Committee is concerned that the general principles of the Convention are not always observed in such situations and that:

(a) Institutional responses to providing assistance to children in difficulty are predominantly used and a disproportionately large number of children are placed in a residential institutional care environment;

(b) Temporary measures may be extended for lengthy periods and that there are no regulations for review of placement;

(c) Children are often placed at significant distances from parents, who, in turn, may not be aware of their visiting rights; punitive measures such as limitation of phone calls or meetings with parents may also be used;

(d) Contacts with parents are sometimes made conditional upon the behaviour of children in care;

(e) The conditions and treatment of children in some institutions may not be provided in a manner consistent with the evolving capacities of the child and the obligation to ensure his or her survival and development to the maximum extent possible;

(f) Institutions are large and an individual approach to each child is lacking, child participation is minimal, and treatment in some institutions (such as diagnostic institutions) may have undesirable effects.”

ON THE LAW

Having discretion with respect of the legal classification of the facts of the claim , the Court considers it appropriate to examine the complaints raised by the concerned parties only from the perspective of Article 8, which requires that the decision-making process leading to interference measures be fair and respect as appropriate the interests protected by this provision (Kutzner v. Germany, No. 46544/99, § 56, ECHR 2002-I). Article 8 thus provides in its relevant parts:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

It further notes that the applicants did not lodge a constitutional complaint against the decision of 6 May 2005, according to which their two younger children were definitively transferred from the public establishment to a foster family.

It follows that this part of the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

At the time of the preparation by the Government of its observations, these requests introduced by the parents remained pending. The Government argued that if the applicants ’ allegations that their situation was already satisfactory were to be justified, the courts would have the opportunity to remedy the alleged violation of the Convention by ordering the return of the children to their parents ’ care. For this reason, the Government considered this part of the application premature.

According to the information available to the Court to date, the two younger children remain in foster care. The fact that the proceedings for the invalidation of this placement is pending does not detract from the reality of the interference in the applicants ’ right to respect for their family life resulting from the separation. Therefore, since the decisions to place these children became final in 2002 and were approved by the Constitutional Court in January 2004, the Government ’ s objection to the effect that the request was premature must be rejected.

With respect to the two eldest children, still minors, the petitioner s ’ request dated 6 M ay 2005 was granted . Consequently, these children were reunited with the applicants pursuant to the Regional Court ’ s judgment of 23 February 2006. It follows that the measure constituting an interference with the applicants ’ right to the respect of their family life was in place for almost four years; therefore, the com plaint based on these facts can not be premature.

Therefore, the defence raised by the Government is rejected.

Subsequently, it was found in the judgment of 18 April 2002 that the applicants did not have suitable accommodation, that they had not made sufficient efforts to find one and that they were unemployed and without resources. The Government agrees with the court that the applicants were not in a position to provide the education of their minor children for want of adequate housing; therefore, interference by the national authorities in the form of taking over the care of children was essential.

Furthermore, according to the Government, the judgment of 22 August 2002 and its detailed and convincing reasoning show that the appellate court was aware of the importance and the consequences of the placement measure for the applicants ’ family life. In accordance with the principle of subsidiarity, the court noted that it was only possible to place children in a public establishment if the aim could not be achieved through less restrictive means, which was the case here as the children could not be entrusted to another person. After taking into account the conflicting interests in the present case, the court properly explained the reasons for which the placement of the children was, in the concrete circumstances of the case, more conducive to the effective protection of their interests. Finally, the tribunal informed the applicants under which conditions it would be possible to put an end to the disputed placement.

Lastly, the Government notes that these decisions were validated by the Constitutional Court, which showed a balanced attitude towards this complex problem.

The applicants assert that the decision to place their children in public schools was in contradiction with the facts mentioned in the judgment of 25 September 2000 and was based on distorted information as presented by the District Office; thereafter, the courts considered such information to be true without verifying its authenticity. They also contest the Government ’ s argument that the courts had looked for other persons to care for the children; they state in this respect that the authorities never contacted the applicant ’ s five siblings.

In this respect, the applicants note that in its decision of 28 January 2004, the Constitutional Court took note of, on the one hand, their efforts and, on the other hand, the limits of their capacities. Thus, while the district and regional courts attributed their situation to their lack of responsibility, the constitutional court did not exclude that they were hit by bad luck.

Thus, unlike most of the cases which the Court had the opportunity to examine, the children of the applicants in this case were not exposed to situations of violence or abuse (see, conversely , Dewinne v. Belgium (dec.), No. 56024/00, 10 March 2005, Zakharova v. France (dec.), No. 57306/00, 13 December 2005), and sexual abuse (see, conversely , Covezzi and Morselli v. Italy , No. 52763/99, § 104, May 9, 2003). Neither did the courts find in this case affective deficits (see, conversely , Kutzner v. Germany , cited above, § 68), a worrying state of health or a mental imbalance affecting the parents (see, conversely, Bertrand v. France (dec.), No. 57376/00, 19 February 2002, Couillard Maugery v. France , cited above, § 261). While it is true that in certain cases declared inadmissible by the Court, the placement of the children was motivated by unsatisfactory living conditions or material deprivations, this was never the only ground on which the courts ’ decision was based , and other elements such as the mental imbalance affecting the parents or their emotional, educational and educational incapacity were added to such reason (see, for example, Rampogna and Murgia v. Italy (dec.), No. 40753/98, May 11, 1999, MG and MTA v. Italy (dec.), No. 17421/02, 28 June 2005).

In any event, as it considers the placement measure to be disproportionate in this case (see paragraphs 74-75 above), the Court does not consider it necessary to rule on this issue.

“[E]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law [ ... ] .”

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

The Court is of the opinion that the applicants have suffered undeniable moral injury as a result of the ir separation from their children. Given the circumstances of the case and ruling on an equitable basis as required by Article 41, the Courts awards them jointly the amount of 10,000 euros (EUR).

FOR THESE REASONS, THE COURT, UNANIMOUSLY

a) that the respondent State shall pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros) for moral damage plus any tax that may be applicable; this sum is to be converted into the national currency of the respondent State at the rate applicable on the date of payment;

b) that from the expiry of that period until payment, that amount shall be increased by simple interest at a rate equal to that of the marginal lending facility of the European Central Bank applicable during that period, increased by three percentage points;

Done in French, and notified in writing on 16 October 2006 in accordance with Article 77 §§ 2 and 3 of the rules of the Court.

Claudia WESTERDIEK Peer LORENZEN

  Registrar President

[1] About EUR 246.