FIFTH SECTION

DECISION

Application no. 72064/17 Veronika MARCOSKI against the Czech Republic and 2 other applications (see list appended)

The European Court of Human Rights (Fifth Section), sitting on 6 April 2023 as a Committee composed of:

Stéphanie Mourou-Vikström , President , Lado Chanturia, Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”) on the various dates indicated therein;

the decision to give notice to the Czech Government (“the Government”), represented firstly by their Deputy Agent, Mr P. Konůpka, and later by their Agent, Mr V.A. Schorm, of the Ministry of Justice, of some of the complaints concerning Articles 6 and 8 of the Convention and to declare a number of other complaints inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns complaints under Articles 6 and 8 of the Convention, and Article 1 of Protocol No. 1 to the Convention. The complaints relate to proceedings between parents concerning custody and contact rights in respect of their child, and to proceedings before the Constitutional Court concerning the proceedings between the parents.

THE COURT’S ASSESSMENT

2. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

3. The Court notes that the Government objected to the applications on various grounds, including the mother’s standing to apply on behalf of the child in respect of applications nos. 19453/18 and 5027/19, and abuse of the right to individual application in respect of all three applications. The Court does not find it necessary to decide on those objections, for the following reasons.

4. Relying on Article 8 of the Convention, the applicants – mother and child – complained about a number of interim decisions made in relation to issues of custody and contact rights in respect of the child which had been adopted in the course of proceedings between the parents. They also argued that the domestic authorities had failed in their positive obligations in that regard. No final decision on the merits of the custody dispute had been adopted by the time the third application was lodged with the Court on 15 January 2019 (no. 5027/19).

5. The Court finds no reason to call into question that the complaints relate to interferences or positive obligations pertaining to the applicants’ right to respect for family life, or that the authorities acted in accordance with the law and pursued the legitimate aims of protecting the child’s health and his and his father’s rights.

6. The Court has set out relevant principles relating to custody disputes between parents in cases such as Mitrova and Savik v. the former Yugoslav Republic of Macedonia (no. 42534/09, §§ 77-79, 11 February 2016) and Suur v. Estonia (no. 41736/18, §§ 74-78, 20 October 2020). Furthermore, for the purposes of the present analysis, the Court finds it pertinent to reiterate that where domestic proceedings have taken place, it is not its task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for those courts to assess the evidence before them (see, among many authorities, Khasanov and Rakhmanov v. Russia [GC], nos. 28492/15 and 49975/15, § 104, 29 April 2022).

7. In the instant case, the Court finds no indication that the mother was not allowed to fully participate in the decision-making processes concerning the interim decisions to which the applications to the Court relate, notably that of 22 December 2016, in which the father was given custody of the child pending the outcome of the proceedings on the merits of the custody case, and the subsequent interim decisions concerning contact rights and supervision of contact. Nor does the Court find any grounds on which to set aside the evidential assessments of the domestic courts, including their finding to the effect that the mother had taken the child to the United States earlier in 2016 without the father’s consent, which those authorities, in the course of the proceedings complained of, took to indicate that the father had a better understanding than the mother of the child’s need to be with both parents.

8. The Court considers, moreover, that on every occasion the domestic courts gave relevant and sufficient reasons for the interim decisions they made, and finds it sufficiently established that above all those courts aimed to attend to the child’s best interests, as illustrated, inter alia , by the repeated references in the dicta of the various interim decisions to which solutions would ensure that the child had as much contact as possible with both parents.

9. In that connection, the Court notes that the domestic courts made amendments to the contact rights regime, including the supervision, as the proceedings went on. Those changes included a gradual extension of the mother’s contact rights, to the point where contact essentially equated to shared custody in terms of time spent with the child, and a gradual reduction of the supervision of contact. In so far as supervision was in fact maintained, this was done by reference to concrete reasons, including an assessment of the risk that the mother could take the child abroad.

10. With regard to positive obligations, the Court observes that it was the domestic courts that, of their own motion, first started proceedings in order to establish the mother’s contact rights. Taking note of the particular circumstances of the case, including the fact that contact between the mother and the child had in fact been arranged by the father, and that the mother did not accept the courts’ jurisdiction, the Court does not find that the applicants adduced anything to indicate any failure by the authorities to attend to any positive obligations in relation to those proceedings not being initiated at any earlier date.

11. In summary, the Court considers that the domestic authorities sufficiently discharged their positive obligations under Article 8 of the Convention, sufficiently attended to the child’s best interests while still having regard to the mother’s interests, and advanced relevant and sufficient reasons for the various decisions covered by the applications. Against that background, the Court finds that the complaints under Article 8 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4.

12. The Court notes that the complaint under Article 6 of the Convention relates in part to the appointment of the Office for Legal Protection as the child’s guardian ad litem and the manner in which the office’s role as guardian ad litem was performed, and in part to the Constitutional Court’s declaring the applicants’ applications to it inadmissible.

13. With regard to the applications to the Constitutional Court, the Court notes that that court carried out a proper examination of the claims and submissions made by the applicants. It responded to them in its decisions of 25 May 2017, 14 November 2016 and 31 August 2018 and gave reasons for dismissing them as manifestly ill-founded. In the light of those reasons, inter alia , although the proceedings were simplified when the complaints were settled by way of inadmissibility decisions instead of formal judgments on the merits, the Court does not find that they disproportionately impinged on the right of access to a court as such.

14. Turning to the Office for Legal Protection’s appointment as guardian ad litem for the child, the Court does not find that the fact that the office was also the Central Authority under the Hague Convention, and in that capacity previously involved in the proceedings in the United States relating to the return of the child to the Czech Republic, was in and of itself a matter which should have led the courts to appoint another guardian. In that connection, the Court is unable to subscribe to the applicants’ arguments to the effect that the principles in the Court’s case-law concerning the requirements of an “impartial tribunal” under Article 6 of the Convention should also apply to guardians. In the Court’s view, a concrete assessment must instead be carried out in view of the overall requirement of a fair trial, which, in the circumstances, may apply to the interim decisions covered by the applications (see, mutatis mutandis , Micallef v. Malta [GC], no. 17056/06, §§ 83-56, ECHR 2009).

15. Having reviewed the material presented, the Court finds no basis for considering that the Office for legal Protection did not take concrete steps to pursue the child’s best interests during the various sets of proceedings complained of. It observes that, following its appointment, the Office for Legal Protection took positions and argued in favour of the mother’s rights being extended, where it considered that to be in the best interests of the child. The father also disagreed with the Office for Legal Protection’s assessments on some points, and as to the points where the guardian, in pursuance of the child’s best interests, defended points similar to those of the father, the Court reiterates that the fact that a similar point of view is defended before a court by several parties does not necessarily place the opposing party in a position of “substantial disadvantage” when presenting his or her case (see, for example, Menchinskaya v. Russia , no. 42454/02, § 33, 15 January 2009).

16. In summary, the Court cannot find any basis for the applicants’ allegations to the effect that the guardian did not provide the child with effective legal representation, did not pursue the child’s best interests, and carried out its guardianship duties in the proceedings in a manner which, for other reasons, led to unfair trials. Accordingly, this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

17. In application no. 19453/18 the applicants complained that in ordering the mother to bear the costs of the supervision relating to the exercise of her contact rights, the domestic authorities had violated her right of property as guaranteed by Article 1 of Protocol No. 1 to the Convention.

18. The Court notes that when the domestic authorities ordered the mother to bear the costs relating to supervision, they did so by reference to her having created the need for it. While the applicants may disagree with that view, they have not given any other explanation as to why they assert that the decision on this point had no legal basis. The Court therefore considers the complaint unsubstantiated and finds that it must be declared inadmissible as manifestly ill-founded, in accordance with Article 35 § 3 (a) of the Convention, and rejected, in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 4 May 2023.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President

Appendix

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

72064/17

Marcoski v. the Czech Republic

02/10/2017

Veronika MARCOSKI 1983 Praha 2 Czech, American

Barbora GAVEAU

2.

19453/18

Marcoski and Rath v. the Czech Republic

11/04/2018

Veronika MARCOSKI 1983 Praha 2 Czech, American Lukáš Nicolas RATH 2015 Prague Czech, American

Barbora GAVEAU

3.

5027/19

Marcoski and Rath v. the Czech Republic

15/01/2019

Veronika MARCOSKI 1983 Praha 2 Czech, American Lukáš Nicolas RATH 2015 Prague Czech, American

Barbora GAVEAU