Resolution CM/ ResDH (2013)218 Two cases against Czech Republic

Execution of the judgments of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

23848/04

WALLOVÁ AND WALLA

26/10/2006

26/03/2007

23499/06

HAVELKA AND OTHERS

21/06/2007

21/09/2007

(Adopted by the Committee of Ministers on 6 November 2013

at the 1183rd meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in these cases and to the violations established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)542 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

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

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 “t he Court”). This report summaris es information from all previous reports of the g overnment 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.

I. GENERAL MEASURES

A. DISSEMINATION OF INFORMATION ABOUT THE JUDGMENTS

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 dist rict courts. The letter summaris ed 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. [1] 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. [2]

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. [3]

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 20 11, the Judicial Academy organis ed training for judges on legal regulation of institutional care in the new Civil Code.

Throughout the relevant time period, the Ministry of Justice organis ed 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 relev ant institutions, and also a de crease in a number of children placed in institu tional care by means of emphasis ing 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. [4]

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.

C. ACTION PLAN ON THE IMPLEMENTATION OF THE TWO JUDGMENTS

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 emphasi s ing 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 , t he 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 famil ies to be provided with subsidis ed housing (see below, chapter on further measures).

D. LEGISLATIVE MEASURES

The new Civil Code explicitly stipulates that “inadequate housing conditions and material situation of parents of the child ( ... )” [5] cannot per se be a reason for the court ’ s decision on institutional care ( ... ).” It should be further noted that the new Civil Code r ecognis es 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 i nstitutional care; emphasis es 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 o f the child; organis ing, 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 standardis ation 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, emphasi s ing the family “like” nature of such centres [6] and the temporary and emergency nature of children ’ s stay therein. [7]

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 S tate 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 , [8] limiting the possibility of a guardian or the authorities to take up such role. Furthermore, based on the A mendment 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.

E. REFLECTION OF THE JUDGMENTS IN DOMESTIC CASE LAW

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). [9]

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 p articular housing problems, cannot per se be a reason for placing a child into institutional care”.

F. FURTHER MEASURES

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 Subsidis ed 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 Region al Development regularly organis es information se minars on programmes on subsidis ed housing.

II. INDIVIDUAL MEASURES

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. [10] 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. [11] It should be, however, pointed out that the institutional care was, indeed, subject to the regular review procedure un der the relevant provisions of the Family Act in order to assess whether the conditions for a further continuation of the institutional care still existed. [12] 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. [13] 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 on going 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 effort s 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. [14] Rules have been set up for mutual communication between all interested parties and the authorities organi s ed numerous meetings of them [15] 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. [16]

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. [17] 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, re presents an emotionally traumatis ing 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 the return of the two youngest children to her care and later apparently even decided not to pursue such an 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, emphasi s ing 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 . [18]

III. CONCLUSION

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] For more details, s ee the a dditional r eport of the g overn ment of 30 June 2010 .

[2] For more details, see the a dditional r eport of t he government of 2 October 2009 .

[3] Ibid .

[4] For more details, s ee the additional report of the governme nt of 2 October 2009 .

[5] Section 971(3) of the new Civil Code.

[6] 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 reun i fication of the family.

[7] The amendment lays down explicit time limits for staying in such centres .

[8] Section 100(4) of the Rules of Civil Procedure.

[9] For more details, see the additional reports of the government of 2 October 2009 and of 30 June 2 010.

[10] For more details, see the additional report of the government of 27 February 2008.

[11] For more details, s ee the additional report of the government of 21 November 2008.

[12] 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 O c tober 2009 .

[13] For more details, s ee the r eport of the government of 27 February 2008 .

[14] See previous reports of the government on the implementation of the judgment.

[15] A direct meeting between Mrs Wallová and her children took place o nly once; for details and problems encountered, see the add i tional report of the government of 21 November 2008.

[16] See e.g. enclosure to the second additional note of the government of 23 May 2008.

[17] See the additional report of the government of 27 February 2008.

[18] For more details, see the r eports of the government mentioned in the part dedicated to t he Havelka and others case .