Resolution CM/ ResDH (2009)11 [1]

Execution of the judgment of the European Court of Human Rights

Berecova against the Slovak Republic

(Application No. 74400/01 , judgment of 24 April 2007 , final on 24 July 2007 )

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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a breach of the applicant ’ s right to respect for family life following the placement of her children in institutional care on the basis of administrative injunctions (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Slovakia ’ s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state , where appropriate:

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

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) , that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2009)11

Information about the measures to comply with the judgment in the case of

Berecova against the Slovak Republic

Introductory case summary

This case concerns the violation of the applicant ’ s right to respect for her family life due to the placement of her children in an institution on the basis of administrative injunctions (violation of Article 8). Following her divorce in 1995, the applicant was granted custody of her two children. In May 2000, the District Office in Košice issued injunctions ordering urgent placement of the children in institutional care. The District Office found, in particular, that the applicant had grossly neglected her duties concerning her children ’ s education, that she was suspected of ill-treatment, and that the father was unable to take care of them. The applicant appealed, but the injunctions were upheld by the Košice Regional Office. In June 2000 the children were placed in an institution. In the meantime, the District Office had informed the Košice District Court of the case. The District Court consequently initiated proceedings to place the applicant ’ s children in institutional care in September 2000.

The European Court found that the placement of the applicant ’ s children in an institution amounted to an interference, which was not “in accordance with the law”. The applicant had been unable to challenge the placement orders before a court, whilst the Slovak Constitution clearly provided that under-age children may only be separated from their parents against the latter ’ s will pursuant to a judicial decision.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2 500 euros

1 500 euros

4 000 euros

Paid on 27/08/2007

b) Individual measures

On 08/01/2002 the Košice District Court delivered a judgment ordering that the applicant ’ s children should no longer be placed in an institution. It became final on 13/09/2002. On 17/04/2002 the Košice District Office informed the applicant that the injunctions had ceased to have effect following the District Court ’ s decision of 08/01/2002 .

On 31/01/2002 both children were returned to the applicant.

II. General measures

The European Court noted that the relevant provisions of the Family Act of 1963 and the Social Assistance Act of 1998 then in force prevented the applicant from seeking a judicial review of the administrative injunctions of placement and were contrary to Article 41(1) of the Constitution. The application of these provisions had moreover led to a situation which was incompatible with Article 152(4) of the Constitution which provides that ordinary laws must be interpreted and applied in conformity with the Constitution (§52 of the judgment).

The disputed provisions enabling the administration to take urgent interim measures were repealed on grounds of unconstitutionality in 2002 and 2004.

Currently the issue of the placement of children in institutional care is governed by Act No. 36/2005 of 19/01/2005 on the Family. According to Section 37§3, temporary placement in institutional care may be ordered by a court for no more than six months.

III. Conclusions of the respondent state

The g overnment considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new , similar violations and that the Slovak Republic has thus complied with its obligations under Article 46 , paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies