FIFTH SECTION

DECISION

Application no . 74556/11 Blanka FUXOVÁ against the Czech Republic

The European Court of Human Rights ( Fifth Section ), sitting on 15 September 2015 as a Committee composed of:

Boštjan M. Zupančič , President, Helena Jäderblom , Aleš Pejchal , judges, and Milan Blaško , Deputy S ection Registrar ,

Having regard to the above application lodged on 28 November 2011 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Blanka Fuxová , is a Czech national, who was born in 1969 and lives in Plze ň . She was represented before the Court by Mr V. Vlk , a lawyer practising in Praha .

The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice.

The circumstances of the case

1. Background

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

3. On 4 August 2001 the applicant gave birth at home to a child, A.

4. On 17 April 2002 the Klatovy District Court indicated an interim measure entrusting A. to the care of a nursery. The measure had been asked for by the child-protection authorities on the grounds that A. had not been registered with Register Office and with any health insurer, had no birth certificate, had not been vaccinated, the applicant was hard to trace, and it had not been possible to establish the child ’ s situation.

The decision on the interim measure contains instructions that it could be appealed against before the Plze ň Regional Court within fifteen days of the day of the service of its written version on the appealing party.

5. On 23 April 2002 the interim measure was implemented by the forcible taking of A. and transporting the baby to the nursery, where the applicant joined the baby some three hours later.

6. On 13 May 2002 the District Court opened proceedings on education and maintenance of A. and these proceedings were discontinued two days later. On the same day, that is to say on 15 May 2002, the interim measure was lifted following application by the nursery, on the ground that there were no longer any reasons for keeping A. at the nursery.

7. The decision to lift the interim measure became enforceable on 17 May 2002 and on that day A. was discharged from the nursery. The applicant had spent the time until then at the nursery with A., except for the first two nights, which she had spent elsewhere.

8. Meanwhile, on 13 May 2002, the Ombudsperson of the Czech Republic issued a report in response to a complaint by the applicant. According to the report, the interim measure had been unjustified and disproportionate.

2 . Application no. 40622/02

9. In an application of 13 November 2002, the applicant and A. raised complaints under Articles 6 § 1 and 8 of the Convention about the interim measure and the proceedings in its respect. This application was registered at the Court under number 40622/02.

10. On 14 January 2003 the Court declared that application inadmissible, sitting in a Committee under Articles 27 and 28 of the Convention, as then in force.

11. The applicant was informed of the Court ’ s decision in a letter of 27 January 2003, according to which “the Court found that domestic remedies had not been exhausted as required by Article 35 § 1 of the Convention since [the applicant and A.] had failed to raise – either in form or in substance – in a complaint to the Constitutional Court, the complaints made to the Court”.

3. Subsequent development

12. On 26 January 2004 the applicant lodged an action for protection of personal integrity under Articles 11 et seq . of the Civil Code against the State (represented by the Ministry of Labour and Social Affairs and the Ministry of Justice, to which the Ministry of the Interior was added later).

The action was aimed at ordering the defendants to apologise for having asked for, indicated and implemented the interim measure mentioned above, as well as for having refused to register A. with the Register Office. At the same time, the applicant sought damages.

13. The action was examined at two levels of jurisdiction, by the Prague Municipal Court and, following the applicant ’ s appeal, by the Prague High Court, which gave their judgments on 23 March and 12 September 2006, respectively.

14. Both the Municipal Court and the High Court dismissed the applicant ’ s claim, albeit partly on different grounds.

The High Court for its part held specifically inter alia that courts dealing with actions for protection of personal integrity had no jurisdiction to review the conduct and decisions of courts and other authorities in other types of proceedings because, for such review, separate remedies and procedures were envisaged.

Both courts held that it was an essential prerequisite for the given type of action to show that there had been an unlawful interference with personal integrity within the meaning of the Civil Code. The defendant ’ s actions however could not be considered such interference because they were permitted by law.

15. The applicant ’ s subsequent appeal on points of law was declared inadmissible without any examination of the merits of the case by the Supreme Court on 6 August 2009.

16. Subsequently, on 19 May 2011, the Constitutional Court declared inadmissible a constitutional appeal in which the applicant had contested the judgments of the Municipal Court and the High Court as being contrary to the domestic-law equivalents of her rights to a fair trial and respect for her family life.

It found that the ordinary courts had adequately examined the case, had arrived at conclusions that were not unpredictable, irregular, or arbitrary and had not violated any of the applicant ’ s rights.

The Constitutional Court made pronouncements as to the scope of the legal protection of personal integrity under Articles 11 et seq . of the Civil Code and held that it was not its task, in particular in view of the passage of time since the events underlying the appeal, to examine in detail the authorities ’ decisions, which in general did not appear extremely inadequate and were tenable legally as well as constitutionally.

In support of that position, the Constitutional Court observed inter alia that A. had actually been separated from the applicant only for a short time, that the stay of A. at the nursery had been accompanied by a number of safeguards, that the authorities had acted for the protection of A. and not for the sanctioning of the applicant, that in the pursuance of that aim they had been left with no alternative, and that the applicant ’ s choice of A. ’ s name had had no influence on the authorities ’ approach.

Lastly, in so far as the applicant had argued that the ordinary courts had failed to examine her action under the State Liability Act, as amended in 2006, the Constitutional Court found the argument irrelevant observing inter alia that the applicant had lodged her claim prior to the entry into force of that amendment and had herself pursued her claim not under the State Liability Act but under Articles 11 et seq . of the Civil Code.

The decision of the Constitutional Court was served on the applicant on 1 June 2011 and no appeal lay against it.

COMPLAINTS

17. The applicant complained under Article 6 of the Convention that she had been denied the opportunity to comment on the authorities ’ application for the contested interim measure.

18. The applicant further complain ed under Article 8 of the Convention that the entrusting of A. to the care of the nursery had been contrary to her right to respect for her family life.

19. Re lying on Article 14 of the Convention, the applicant also complain ed that A. had been taken away from her because of her belie f in an alternative lifestyle.

20. Lastly, the applicant complain ed under Article 13 of the Convention that she had had no effective remedy at her disposal in respect of the other alleged violations of he r rights.

THE LAW

A. Article 8 of the Convention

21. The applicant alleged a violation of her right to respect for her family life protected under Article 8 of the Convention, which provides:

“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.”

22. The Court observes first of all that the applicant had raised complaints under the same provision in relation to the interim measure and the underlying proceedings already in her application no. 40622/02, that such complaints were declared inadmissible in 2003, and that the reason for that decision was non-exhaustion of domestic remedies in that the applicant had failed to assert her rights before the Constitutional Court (see paragraphs 9-11 above).

23. The present application concerns largely the same matters and it must therefore be established above anything else whether it comprises any relevant new information within the meaning of Article 35 § 2 (b) of the Convention.

24. In that regard, the Court notes that, more than one and a half years after the events, procedures and decisions at the heart of the present application, the applicant initiated proceedings for the protection of personal integrity under Articles 11 et seq . of the Civil Code.

25. On that matter, the Government argued that the given type of action was not a remedy to be used in the particular circumstances of the present case and that the remedies to be used for the purposes of Article 35 § 1 of the Convention were an appeal against the interim measure, an application for lifting it, and – depending on the outcome of those remedies – a constitutional appeal.

26. The applicant, on her part, argued that she had not contested the interim measure before the Constitutional Court on a number of grounds. First, such a course of action was subject to mandatory legal representation, ensuring which would have taken time, just as would have the preparation of an application to the Constitutional Court, while the interference with her rights had been an immediate event calling for an immediate remedy. Moreover, arguing a case before the Constitutional Court was beyond her financial capacities, the Constitutional Court had no jurisdiction to award damages, its power being limited to the making of declaratory rulings, and the chances of success of such an extraordinary course of action were slim. In addition, a constitutional complaint was subject to the rule of exhaustion of ordinary remedies, which she precisely had done, by asserting protection of her personal integrity before the ordinary courts.

27. The Court observes that application no. 40622/02 was rejected in the former Committee formation and that, under Article 28 of the Convention, as in force at the relevant time:

“ A committee may, by a unanimous vote, declare inadmissible or strike out of its list of cases an individual application submitted under Article 34 where such a decision can be taken without further examination. The decision shall be final. ”

28. The Court ’ s decision of 14 January 2003 on the inadmissibly of application no. 40622/02 is therefore final and does not stand open to review in the framework of the present proceedings.

29. As to the subsequent developments, consi sting of the applicant ’ s action for protection of personal integrity, the Court observes that under the case-law of the Constitutional Court : ( i ) this remedy is available only in horizontal relations between private persons , while in vertical relations between an individual and the State the claim should be considere d under the State Liability Act (see Bureš v. the Czech Republic ( dec. ), no. 5081/11, 9 October 2012) ; and (ii) it might exceptionally be available in vertical relations only if there exists no special remedy for the given type of situation (see the Constitutional Court ’ s judgment referred to in Dubská and Krejzová v. the Czech Republic , no s . 28859/11 and 28473/12 , § 14, 11 December 2014 ) .

30. The Court is aware that the Constitutional Court c ase-law cited in Bureš , as referred to in the preceding paragraph, dates to the period subsequent to the 2006 amendment of the State Liability Act (see, for example, R & L, s.r.o . and Others v. the Czech Republic , nos. 37926/05, 25784/09, 36002/09, 44410/09 and 65546/09 , §§ 76 et seq ., 3 July 2014 ). Nevertheless, it finds the Constitutional Court ’ s position as referred to in Bureš indicative of the legal nature of the remedy in question. Moreover, some indication of the object, purpose and scope of that remedy may be found in the existing practice in the Slovak Republic, where essentially the same Civil Code provisions apply until the present day (see Kontrová v. Slovakia ( dec. ), no. 7510/04 , 13 June 2006 ).

31. On the facts of the instant case, the Court observes that the applicant ’ s grievances are allegedly imputable to State authorities, and not to a third party (see, a contrario , Ťupa v. the Czech Republic , no. 39822/07 , § 41 , 26 May 2011 ). Her action was accordingly directed against the State and it was in that context t hat the High Court as the court of appeal expressly concluded that ordinary courts dealing with actions for protection of personal integrity had no power to review procedures and decisions of courts and other authorities which were subject to separate review procedures.

32. The Court emphasises that this position directly applies to the applicant ’ s case where the impugned interim measure and the underlying proceedings were directly contestable by the remedies invoked by the Government, as partly confirmed by the Court ’ s own decision on the admissibility of application no 40622/02. The existence of these remedies distinguishes the position in the present case from that in Dubská and Krejzová (cited above).

33. At the same time, the Court considers that the clear positon of principle taken by the court of appeal as regards the applicant ’ s action relativizes any factual observations as to the merits of the case that the ordinary courts and in particular the court of first instance may have made.

34. The Court further notes that the ordinary courts ’ assessment of the applicant ’ s action under Articles 11 et seq . of the Civil Code was subsequently endorsed by the Constitutional Court, which found no irregularity or arbitrariness in the ordinary courts ’ conclusions.

35. As regards the Constitutional Court ’ s references to the factual features of the case (see paragraph 16 above), the Court observes that these were of general nature and constituted rather obiter dicta than actual judicial review of the facts of the case. This conclusion is specifically consonant with the Constitutional Court ’ s pronouncement that it was not its task to examine in detail the authorities ’ decisions and that, in so far as they were found to be tenable, this finding was “in general” ( see paragraph 16 above).

36. Since the applicant ’ s chosen course of action has ultimately led her to plead her case before the Constitutional Court, and as not having done so was the reason for the rejection of her application no. 40622/02, the Court finds it appropriate further to examine the Government ’ s non-exhaustion argument made in relation to the possibilities of ( i ) challenging the contested interim measure by way of an appeal, (ii) applying to the ordinary courts that it be lifted and – if need be – (iii) challenging the outcome of such proceedings before the Constitutional Court. It notes in particular that the applicant ’ s reply to this argument concerns solely the remedy before the Constitutional Court but remains completely silent in relation to the remedies before the ordinary courts.

37 . In these circumstances, the Court accepts that the remedies to be exhausted prior to the bringing of the applicant ’ s case to the Constitutional Court for the purposes of Article 35 § 1 of the Convention were those identified by the Government, and in particular those before the ordinary courts. In reaching this conclusion, the Court has taken into account inter alia the fact that the immediacy of the situation in which the applicant was placed as a result of the interim measure precisely called for immediate remedies and that such remedies were specifically available before the ordinary courts. In that regard, relying on the Constitutional Court ’ s own observation to the same effect, the Court notes that it is difficult if at all possible to ensure a proper examination of a situation such as that impugned in the present case many years later on the basis of a subsequent and indirect remedy.

38. For the sake of completeness, the Court notes that the remedies before the ordinary courts as identified by the Government could have led to the quashing of the impugned decision and immediate termination of the interim care of A. and that, depending on their the outcome, the applicant could have further asserted her rights before Constitutional Court.

39 . On the specific circumstances of the present case, especially in view of the immediacy of the situation brought about by the impugned interim measure and the immediacy of the remedy directly available against it before the ordinary courts, the Court does not find decisive the argument that those remedies had no potential of securing the applicant financial compensation in respect of her non ‑ pecuniary damage.

M oreover, and in any event, to the extent that the applicant may be understood as making such an argument, or – conversely – as arguing that the only avenue for obtaining such damages was the action for protection of personal integrity, the Court observes that the applicant does not appear to have advanced such argument before the Constitutional Court.

40 . In view of the above, the Court considers that the applicant ’ s action for protection of personal integrity and the courts ’ decisions in respect of it do not constitute any relevant new information within the meaning of Article 35 § 2 (b) of the Convention in relation to that known to the Court already at the time of its examination of application no. 40622/02.

41. In so far as the dismissal of the applicant ’ s action for protection of personal integrity as such should be seen as a separate alleged violation of the applicant ’ s rights, the Court reiterates that i t is not its task to deal with errors of fact or law allegedly committed by a national court unless and insofar as they may have infringed rights and freedoms protected by the Convention (see Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). The applicant ’ s arguments have been properly examined at two levels of ordinary courts and ultimately by the Constitutional Court and there is no indication of any procedural unfairness. Within the parameters of that remedy as established at the domestic level, the dismissal of the applicant ’ action could and did not have any impact on her rights protected under Article 8 of the Convention.

42. In sum, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the applicant ’ s rights protected under Article 8 of the Convention.

It follows that th e complaint under that provision is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaints

43. The applicant also alleged a violation of Articles 6, 13 and 14 of the Convention.

44. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they likewise do not disclose any appearance of a violation of the Convention or its Protocols .

It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 October 2015 .

Milan Blaško Boštjan M. Zupančič Deputy Registrar President