FIFTH SECTION

Application no. 59774/09 Irena OLÁHOVÁ and Josef OLAH against the Czech Republic lodged on 2 November 2009

STATEMENT OF FACTS

THE FACTS

The applicants, Ms Irena Oláhová and her son, Mr Josef Oláh , are Czech nationals, who were born in 1964 and 1992 respectively and live in Libčice nad Vltavou . They are represented befor e the Court by Mr D. Strupek , a lawyer practising in Prague.

A. The circumstances of the case

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

The first applicant ’ s husband and father of the second applicant died in 2006. On 22 October 2007, upon a request of the Černošice Municipal Office which the first applicant eventually joined, the Prague-West District Court decided to subject the second applicant to a public institution care ( ústavní výchova ). The court accepted the reasons advanced by the Municipal Office that after the first applicant ’ s husband ’ s death, she encountered difficulties in upbringing the second applicant who was prone to truancy, and that specialised psychological and pedagogical assistance in an advisory centre had failed as the second applicant did not collaborate. The court concluded that, notwithstanding his mother ’ s efforts, the second applicant should receive specialized pedagogical care. No appeal was filed.

According to the report of the Czech Ombudsman issued on the applicants ’ case, after he had been placed into public care, the second applicant had daily telephone contact with the first applicant who visited him every Wednesday, and he was allowed to stay with his family regularly during weekends.

On 25 February 2008 the first applicant submitted a request to have the public care terminated on the ground that her son was suffering emotionally, as he was separated from his family and understood his placement as a punishment. She also informed the court that her brother was going to join the family and would help her to deal with the second applicant ’ s truancy.

On 26 February 2008 the first applicant was found guilty of endangering the morale of juveniles by the Prague-West District Court because of the second applicant ’ s truancy, and was given a conditional sentence.

On 17 March 2008 the District Court rejected the first applicant ’ s request, referring to a report drawn up by the public institution and without hearing the second applicant. The court observed that after a certain adaptation period the second applicant had started to fulfil his school duties, that he behaved well and had strong ties with his family. It expressed, however, its doubts as to whether he would respect his uncle. The court also referred to the Černošice Municipal Office ’ s report which contained a negative description of the second applicant based on the statements made by the employees of the public institution, and recommended keeping the second applicant in the public institution. The court concluded that the reasons for the second applicant ’ s placement still existed as he was preparing to continue his studies and that his mother ’ s educational skills remained unchanged.

The first applicant appealed arguing, in particular, that the District Court decided on the grounds that her parenting skills had not changed although they had never been called in question b efore. She further pointed to a discrepancy between the statements of the public institution and that of the Municipal Office. She also noted that her son had not been heard by the court.

In a judgment of 27 May 2008 the Prague Regional Court dismissed the first applicant ’ s appeal, finding that the circumstances had not changed. In its statement, the Černošice Municipal Office also referred to the first applicant ’ s conditional sentence. The court noted that while it was true that the second applicant would finish basic school in June 2008, he would continue his studies in the vocational school and the continuing specialised care was needed in order to secure his attendance there. The appellate court stated that it was not necessary to hear the second applicant because the only thing he could say was that he wanted to go home which was not disputed.

According to the Czech Ombudsman ’ s report, following this court decision the public institution ’ s attitude towards the visits had become negative and there had been attempts to limit the contact of the second applicant with his family. Thus it had been proposed that the second applicant ’ s weekend stays take place only every two weeks.

The second applicant finished the basic school on 16 June 2008. Considering that the reason for public institution care was to secure his school attendance, the first applicant asked the public institution to enable her son to spend summer holidays with his family. Relying on an internal regulation, the institution only recommended 14 days long stay of the second applicant with his family. The first applicant asked the institution to deliver an administrative decision on this issue but that never happened. The second applicant was allowed to stay wi th his family only from 27 June 2006 to 13 July 2008.

On 31 July 2008 the applicants filed a constitutional appeal alleging a violation of Article 8 of the Convention. They argued in particular that securing the second applicant ’ s attendance of a vocational school was not a sufficient and proportionate reason for such a significant interference with their right to respect for family life. They added that public authorities had not fulfilled their positive obligation to re-unite the family and, on the contrary, had laid obstacles in the way of contacts between the family members. They further complained that the second applicant had not been heard in the course of the proceedings.

On 10 November 2008 the first applicant filed a second request for termination of the public care because six months had passed from the last decision. She claimed that the second applicant was being assaulted and blackmailed, and that there should be a review of whether the reasons for the public care still existed.

On 12 November 2008 the Czech Ombudsman issued a report on the applicants ’ case stating that the imposition of a public care was justified. He nevertheless reproached the Municipal Office and the public institution for changing their approach and attempting to minimize the contact between the applicants after the Prague Regional Court ’ s decision of 27 May 2008. The Czech Ombudsman stressed that their duties were exactly the opposite. He further agreed with the first applicant that an administrative decision should have been delivered on the extent of the second applicant ’ s stay with his family during summer holidays.

On 4 December 2008 the second applicant left the vocational school because he did not cope with his study duties.

On 19 January 2009 the Prague-West District Court held a hearing in which the second applicant was heard. With agreement of the public institution, the first instance court terminated the care order and made a judicial supervision order over the second applicant. This decision was not appealed against. The second applicant left the public institution on 6 February 2009.

The applicants later informed the Constitutional Court that the public care had been terminated and stated their wish for their constitutional appeal to be decided upon. They still considered themselves to be victims of a violation because the public care had been terminated only due to changed circumstances. In its statement submitted to the C onstitutional Court on 23 February 2009, the Prague Regional Court expressed its opinion that the continuation of the public care during the second applicant ’ s studies was well-founded.

On 2 April 2009 the Constitutional Court quashed the Prague Regional Court ’ s judgment of 27 May 2008. It stated that placement in a public institution removed a minor child from an “area of personal liberty”. A duty to hear the second applicant arose from the right to personal liberty. Since the second applicant had not been heard in the court proceedings, the Constitutional Court found a violation of his procedural rights arising from the rights to judicial protection, personal liberty, respect to family life and right of a child to express his opinion in court. This reasoning was extended to the first applicant, and the Court also ruled in her favour. As this reasoning was sufficient to annul the appellate court ’ s decision, the Constitutional Court refrained from reviewing other complaints. The alleged violation of Article 8 of the Convention caused by the continuation of the public care beyond the period of his education in elementary school was not addressed.

According to the applicants, the Prague Regional Court could only discontinue the proceedings without deciding on the merits because the public care had since been terminated. It seems that the Prague-West District Court ’ s judgment of 17 March 2008 was not quashed.

On 26 October 2009 the applicants applied for non-pecuniary damages from the Ministry of Justice under the State Liability Act (no. 82/1998) According to the applicants, the Prague-West District Court ’ s judgment of 17 March 2008 and the Prague Regional Court ’ s judgment of 27 May 2008 amounted to unlawful decisions and had led to a violation of their right to respect for family life insofar as they resulted in the second applicant remaining in the public institution to secure his attendance at a vocational school.

On 20 July 2010 the Ministry of Justice declared, referring to the Constitutional Court ’ s judgment, that the Prague Regional Court ’ s judgment of 27 May 2008 amounted to an unlawful decision within the meaning of the State Liability Act, and considered that the declaration of unlawfulness constituted sufficient redress.

The applicants lodged a complaint against the decision of Ministry of Justice with the Prague 2 District Court. After its first decision was reversed on appeal for procedural flaws, this court dismissed the applicants ’ request for damages on 11 August 2011, agreeing with the Ministry of Justice that the declaration of unlawfulness was sufficient redress.

On 8 March 2012, on the applicants ’ further appeal, the Prague Municipal Court stated that, as the second applicant had not been heard, the Prague Regional Court ’ s judgment of 27 May 2008 constituted a violation of the applicants ’ right to a judicial protection (Article 36 § 1 of the Czech Charter of Fundamental Rights and Freedoms) in conjunction with the right of a child to be heard (Article 12 § 2 of the Convention on Rights of the Child) and to be informed (Article 3 (b) of the European Convention on Exercise of Children ’ s Rights), along with the right to personal liberty and to respect for family life (Articles 8 § 1 and 10 § 2 of the Czech Charter). It concluded that such a declaration was sufficient, and did not address the question as to whether the decision itself to keep the second applicant in public care after he had finished the elementary school was unlawful.

The applicants filed an appeal on points of law against this decision. It appears that the proceedings before the Supreme Court are still pending.

B. Relevant domestic law and practice

The relevant provisions of the domestic law are mostly set out in the Court ’ s judgment Wallová and Walla v. the Czech Republic (no. 23848/04, §§ 37-44, 26 October 2006).

In its judgment no. II. ÚS 838/07 of 10 October 2007, the Constitutional Court stated that the separation of a family is very serious interference with fundamental rights and must be based on sufficiently convincing arguments motivated by the interests of the child, e.g. a child facing violence or ill treatment, sexual abuse or “at least” an insufficient emotional environment, unfavourable health status of the parents, unsatisfactory living conditions or material deficiencies together with other circumstances. The Constitutional Court also held that the possibility of offering the child a more favourable environment could in itself justify a forced separation from biological parents; such interference with parents ’ right to enjoy family life must additionally be “necessary” with respect to other circumstances. If the existence of family life is established, the public authorities must act in order to develop this relationship and they must adopt all possible measures to maintain the links between a parent and a child.

COMPLAINT

The applicants complain under Article 8 of the Convention that after finishing the basic school, the second applicant was kept in public care for nearly eight months in order to secure his attendance at a vocational school, which was not a sufficient and proportionate reason to keep their family separated. They further contend that the domestic authorities did not fulfil their positive obligation to re-unite the family.

QUESTION S TO THE PARTIES

1. May the applicants still be regarded as victims of a violation of Article 8 of the Convention ( Nada v. Switzerland [GC], no. 10593/08 , 1 2 September 2012, §§ 128-129 with further references ) ?

2. Did keeping the second applicant in public care after he had finished the basic school, in order to secure his attendance at a vocational school, amount to a violation of the applicants ’ right to respect for family life under Article 8?