SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55069/00 by Karel MIFFEK against the Czech Republic

The European Court of Human Rights ( Second Section) , sitting on 7 January 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mrs W. Thomassen , Mrs A. Mularoni, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 27 January 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Karel Miffek, is a Czech national who was born in 1951 and lives in Prague. He is represented before the Court by Mrs K. Veselá- Samková, a lawyer practising in Prague.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

On 11 May 1994 the applicant’s marriage, of which two daughters were born in 1987 and 1992 respectively, was dissolved by a decision of the Prague 4 District Court ( obvodn í soud ). The court, upon the parents’ agreement, granted custody of the children to the mother.

Subsequently the mother moved away from Prague with the children and started to prevent the applicant from seeing them. As there was no access arrangement governing the applicant’s contact with the children, and he considered himself to be excluded from their upbringing, the applicant applied to the Litom ěřice District Court requesting that custody of the children be granted to him. On 4 March 1997 the District Court dismissed the applicant’s request and access arrangements were made for him.

On 2 December 1997 the Litom ěřice District Court issued an interim order concerning the applicant’s access to the children under which he was entitled to meet them on a regular basis, namely every Saturday for a period of ten hours.

On 16 July 1998 the court permitted the applicant to stay with the children for  part of the summer holidays.

On 28 July 1998 the District Court imposed a fine of 500 Czech korunas (CZK) on the mother for preventing the applicant from meeting his daughters during the holidays.

On 1 August 1998 an amendment to the Family Act ( Zákon o rodině ) was adopted (see “Relevant domestic law and practice ” below).

On 31 August 1998 the applicant, with reference to the above amendment, lodged an application to vary the custody order, claiming that the mother had either prevented him from having access to the children or had insisted on her presence during his visits on several occasions.

The custody claim was dismissed by the Litom ěřice District Court on 15 January 1999 but the applicant’s visiting rights were extended. Although pursuant to section 27 (2) of the Family Act the court could vary the existing custody order, it found no circumstances justifying it. It found, with reference to the statements by both parties, witnesses and the guardian appointed to represent the interests of the children in the proceedings, that the mother had looked after the children competently, had devoted much time to them and that they did not suffer from any absence of emotional ties, which were much stronger with the mother than the father. The court also referred to the statements of both children at the hearing in which they had clearly and consistently confirmed that the most important person for them was their mother, to whom they were accustomed, and that they wanted to meet their father every fortnight at weekends. They further stated that, although they were on good terms with their father, there were certain tensions between them, as the father had a tendency to react inadequately and had provoked situtations of conflict, uttering threats that they would be soon living with him without their mother.

The court also ordered an expert opinion on the applicant’s mental health. The expert stated that the applicant’s personality embodied certain “paranoid features and defects of personality ”, and had concluded that for the applicant “winning“ disputes had become more important than the children’s upbringing.

As to her presence during the applicant’s visits, the mother argued that this resulted from various threats the applicant had kept making to the children, e.g. that they would be soon living with him without their mother. She feared that the applicant might try to influence the children against her. However, she was not opposed to granting visiting rights to the applicant.

The court allowed the applicant to meet his children between Saturday 9 a.m. and Sunday 6 p.m. every fortnight. He was also permitted to stay with them for a part of the summer holidays and for a part of the spring, Christmas and Easter holidays.

Taking into account that the children had expressed the view that they wanted to live with their mother and had developed in a good and harmonious manner under her care, the court found no reason to vary the existing custody order. A change in the situation by separating the children from their mother would expose them to a shock and would probably lead to grave repercussions as to their well-being. This was also approved by the children’s guardian, who had not recommended a change in their custody.

As the custody decision had to be based exclusively on the interests of the children and having regard to the emotional links of the children to the parents, the court considered that the applicant’s present visiting rights were sufficient for their development and upbringing.

On 10 February 1999 the applicant lodged an appeal with the Ústí nad Labem Regional Court ( krajsk ý soud ). He claimed that the first-instance court had arbitrarily established and assessed the facts and evidence of the case, and had made incorrect legal conclusions, given that it had been proved that the mother had prevented him from having contact with the children. In his view, the custody order should have been varied as a result of this. Finally, he submitted that his ability to look after the children had been found to be at least as satisfactory as the mother’s.

On 23 June 1999 the Regional Court varied the applicant’s visiting rights during the summer and autumn holidays and upheld the remainder of the first-instance judgment . It also absolved the mother from the fine of CZK 500 imposed on her by the District Court on 28 July 1998. It held that this was not a case in which the mother had deliberately refused to comply with the court’s decision and that the relevant provisions of the Code of Civil Proceedure concerning enforcement proceedings should have been applied.

After considering all the applicant’s arguments, the Regional Court did not share his allegations that, as he was repeatedly prevented from having contact with his children, the existing custody order should be varied. The Regional Court concluded that it was in the best interests of the children to remain in the mother’s custody with regular visits from the applicant.

On 9 August 1999 the applicant lodged a complaint with the Constitutional Court ( Ústavní soud ), relying on a violation of Article 5 and 7 of the Convention on the Rights of the Child, which guarantees, inter alia, the right of the child to personal contacts with both parents. The applicant further relied on his right to judicial protection in that the legal conclusions of the ordinary courts were contrary to the established facts and evidence.

On 29 September 1999 the Consitutional Court rejected the applicant’s complaint. It found that the ordinary courts had considered the facts of the case in accordance with the national law, examined all the evidence which had been presented correctly, and had reached correct factual and legal conclusions on which they had based their judgments . The decision stated that the ordinary courts, in their judgments, had respected the interests of the children as set out in Article 1 of the Convention on the Rights of the Child.

B. Relevant domestic law

Under section 27 (1) of the Family Act, a parental agreement concerning their rights to have contacts with their children need not be approved by a court.

Paragraph 2 of section 27 of the Family Act provides that a court shall determine the parents’ right to have contact with their children when it is required by educational interests and the family situation. Repeated and unjustified hampering of a parent’s enjoyment of his or her right to contact with a child shall be considered as a change in the situation, requiring a new decision on the environment in which the child is being brought up.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that the domestic courts, by continuing to grant his ex-wife custody, prevented him from having de facto access to his children and from bringing them up.

2. The applicant complains under Article 6 § 1 of the Convention about the unfairness of the proceedings in the domestic courts. In particular, he complains that the proceedings were not fair in that the Regional Court and the Constitutional Court respectively had failed to give relevant and sufficient reasons for their decisions and had not sufficiently established the facts of the case. Finally, he complains that the decisions on his claim were arbitrary.

THE LAW

1. The applicant complains that, by continuing to grant his ex-wife custody, his right of direct access to and the upbringing of his children has been interfered with in an unjustified manner. He alleges a violation of Article 8 of the Convention, which provides, in so far as relevant:

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

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... for the protection of  the rights and freedoms of others.”

Assuming that the decisions complained of constituted an interference with the applicant’s family life, the Court has to examine whether this interference was in accordance with the law, and had an aim which was legitimate and necessary in a democratic society within the meaning of Article 8 § 2 of the Convention.

The Court recalls that, in determining whether an interference was “in accordance with the law”, it is primarily for the national courts to interpret and apply domestic law (cf. McLeod v. the United Kingdom , judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2789, § 44).

In the present case the domestic courts were called upon to decide on the applicant’s request for the transfer of the custody of his children to him. In doing so, they had to determine, in particular, whether a change in custody was justified in the interests of the children’s upbringing and the family situation, as required by section 27 ( 2) of the Family Act. Thus the interference complained of had a legal basis in Czech law, as required by paragraph 2 of Article 8.

The Court further finds that in the present case the interference at issue was clearly aimed at protecting “the rights and freedoms” of the applicant’s children and thus pursued a legitimate aim within the meaning of Article 8 § 2 of the Convention.

As to the question whether the interference was “necessary in a democratic society”, the Court reiterates that consideration of what lies in the best interests of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It is not the Court’s task to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation. A fair balance must be struck between the interests of the child and those of the parent. In doing so, particular importance must be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parent. In particular, the parent cannot be entitled under Article 8 of the Convention to have such measures taken as would harm the child’s health and development (cf. Elsholz v. Germany [GC], no. 25735/94, §§ 48-50, ECHR 2000-VIII, with further references).

The documents before the Court indicate that in the present case the domestic courts established the relevant facts with sufficient certainty. In particular, they had before them submissions by the applicant and his former wife, a report by a psychologist who had examined the applicant and the statements of the children and their guardian made in the course of the proceedings. The courts concluded, with reference to the strained relations between the parents and the wishes of the children, that a change in custody would seriously impair the development of the children.

The refusal to grant custody to the applicant was thus justified in the children’s interests and it was based on reasons which appear relevant and sufficient. The Court finds no indication that, in reaching the above conclusion, the domestic authorities failed to strike a fair balance between the competing interests or that they overstepped their margin of appreciation.

In these circumstances, and in so far as the decisions complained of amount to an interference with the applicant’s right to respect for his family life within the meaning of Article 8 § 1 of the Convention, the Court finds that such an interference can be considered as necessary in a democratic society within the meaning of Article 8 § 2 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complains that his right to a fair hearing was not respected. He alleges a violation of Article 6 § 1 of the Convention which provides, in so far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by ... tribunal...”

To the extent that the applicant complains that the courts failed to establish the facts correctly and made their decisions arbitrarily, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see the García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

The Court observes that the ordinary courts and the Constitutional Court examined the applicant’s case in a careful and extensively reasoned manner and that there is nothing to show that they arbitrarily disregarded any relevant arguments or submissions, the cognisance of which would have necessarily led to a decision in the applicant’s favour. It has found above that the reasons for the judicial decisions complained of were sufficient and relevant.

It has not been contested by the applicant that he had an opportunity to have knowledge of and comment on the evidence before the courts, and that he was free to present his case with the assistance of his lawyer and to submit any evidence which he considered relevant.

In these circumstances, there is no appearance that the proceedings complained of were unfair contrary to the requirements of Article 6 § 1 of the Convention.

It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J. -P. Costa Registrar President