Published on 3 April 2023

FIFTH SECTION

Application no. 5400/23 Kamil TOJNER against the Czech Republic lodged on 23 January 2023 communicated on 14 March 2023

SUBJECT MATTER OF THE CASE

The application concerns the refusal by the domestic courts of the applicant’s request to be formally granted “alternating custody” of his children, although he can enjoy it de facto since he was granted “visiting rights” extending to twelve days per month. In the applicant’s view, such a decision amounts to an indirect discrimination on the grounds of sex, since it reveals persisting prejudices against fathers and has negative repercussions namely on his financial situation (he was ordered to pay child maintenance since the children are formally in their mother’s custody, and he cannot benefit from an income tax reduction on account of dependent children).

The applicant relies on Articles 6, 8 and 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his civil obligation to pay the child maintenance, in accordance with Article 6 § 1 of the Convention?

2. Did the applicant have access to the Constitutional Court, in accordance with Article 6 § 1 of the Convention, given that that court did not address his complaint of indirect discrimination (raised in the reasoning of his constitutional appeal)?

3. Did the decision not to grant the applicant alternating custody of his children amount to an interference with his right to respect for his family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? Were the reasons put forward by the courts relevant and respectful of the children’s best interest (see, for example, C. v. Finland , no. 18249/02, 9 May 2006; Diamante and Pelliccioni v. San Marino , no. 32250/08, 27 September 2011; Suur v. Estonia , no. 41736/18, 20 October 2020)?

4. Did the applicant suffer discrimination on the ground of sex, contrary to Article 14 of the Convention, read in conjunction with Article 6 and 8 (see, mutatis mutandis, Tapayeva and Others v. Russia , no. 24757/18, §§ 90-119, 23 November 2021)?

Reference is made to an alleged discriminatory impact of custody and contact arrangements akin to alternating custody but which are not designated as such while the custody is formally granted to mothers, which confers on them advantages in the public-law sphere. The Government are invited to comment on the statistics submitted by the applicant and to provide any relevant statistical data in their possession.