AS TO THE ADMISSIBILITY OF
Application no. 74400/01
by Adriana BERECOVÁ
The European Court of Human Rights (Fourth Section), sitting on 19 September 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 21 June 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mrs Adriana Berecová, is a Slovak national who was born in 1971 and lives in Košice. She is represented before the Court by Mrs I. Rajtáková, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) are represented by their Agent, Mrs A. Poláčková.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
By a decision which became final on 30 May 1995 the Košice II District Court pronounced the applicant’s and her husband’s divorce. The applicant was granted custody of the two children born in 1991 and in 1993 respectively, and their father was ordered to contribute to their maintenance.
In a letter of 17 December 1998 the Regional Office in Košice asked the Social Affairs Department of the District Office Košice IV to monitor the situation of the applicant and her children and to provide intensive social assistance to them. Reference was made to facts indicating that the applicant had not behaved in an appropriate manner in respect of her children. The Košice IV District Office found that no intervention was necessary. As the permanent address of the children had changed, the file was transmitted to the Košice II District Office on 2 February 1999.
Two students found the applicant’s children in a street on 11 February 2000. They were hungry and could not return home as their mother was absent. According to the children the applicant had beaten and ill-treated them. The police brought the children to their aunt. This was reported by a psychologist on 14 February 2000.
Late in the evening on 17 April 2000 the police found the children in a park after they had fled from their home. Their examination in a hospital disclosed bruises and healed scars on their bodies. The children manifested fear of their mother and refused to return home. A psychologist concluded that their fear resulted from punishment inflicted by their mother and from her inappropriate emotional behaviour.
On 19 April 2000 the Košice II District Office issued an injunction ordering that the children be placed temporarily in the father’s custody. The decision was based on section 68(a)(1) of the Social Assistance Act and on section 46 of the Family Act. It stated that the applicant had grossly neglected the education of her children, that they had to be hospitalised and that there was a suspicion that she had ill-treated them. The applicant appealed.
On 3 May 2000 the District Office issued two injunctions ordering that the children be placed in a juvenile diagnostic centre as the father had been unable to take care of them. The applicant appealed.
On 24 May 2000 the Košice II police department accused the applicant of having ill-treated her children between 1997 and 17 April 2000. According to the accusation, there was a suspicion that the applicant had inflicted inappropriate physical punishment on the children.
On 28 June 2000 the Košice Regional Office granted the applicant’s appeal against the administrative decision of 19 April 2000 in that it ordered that an institution should take care of the children until the relevant issues had been determined by a court.
On 30 June 2000 the Košice Regional Office dismissed the applicant’s appeal against the first-instance administrative decision of 3 May 2000 and confirmed that the children should remain in institutional care pending the final decision of a court. Reference was made to a police report indicating that the children had run away from the applicant and also to the report of a psychologist indicating that the children had been subjected to excessively hard educational methods and physical punishment as a result of which they had become anxious. The applicant had been repeatedly requested to improve the situation of the children. As she had failed to do so, the Regional Office concluded that the healthy development of the children had been jeopardised. It was therefore necessary to place them in an institution pending a judicial decision on the case.
In the meantime, on 20 and 23 June 2000, the Diagnostic Centre for Children in Košice drew up two reports recommending that the children should be placed in a children’s home temporarily. As the mother had acknowledged mistakes in her behaviour and had shown willingness to take appropriate care of her children, the reports recommended that the possibility of the children’s return to her should be re-considered at a later stage.
The children were placed in the children’s home in Vranov nad Topľou on 27 June 2000. The applicant visited them there.
The applicant requested that the children be allowed to spend a part of the summer holidays with her. Her request was dismissed on the ground that the criminal proceedings against her were still pending.
On 5 September 2000 the Košice II District Court started proceedings for the placement of the applicant’s children in an institution. The decision to bring the proceedings referred to a notification from the Košice II District Office, dated 12 May 2000, informing the court of the above injunctions.
As the applicant’s son had serious psychological problems, he was treated in the psychiatric hospital in Michalovce from 20 September 2000. On 25 October 2001 the head physician informed the Košice II District Office of the applicant’s visit. According to his letter, the applicant had disregarded the indications given by the physician and had attempted to take her son away from the medical department. She had used vulgar terms in respect of the doctor and she had thus disturbed her son’s equilibrium and his confidence in the hospital staff.
On 10 November 2000 the children were transferred to the children’s home in Nižná Kamenica.
On 8 December 2000 a public prosecutor conditionally discontinued the criminal proceedings against the applicant and set a one-year probationary period for her. According to the decision, the applicant had admitted the actions imputed to her and had explained that she had had psychological difficulties due to her divorce and bad financial situation. The public prosecutor also had regard to the statement of a social assistant and to opinions of experts in psychology and psychiatry.
On 20 December 2000 the applicant requested that the children be allowed to spend the Christmas holiday with her. She relied on the above decision to discontinue the criminal proceedings on a conditional basis and maintained that there was an urgent need for the relations between her and the children to be renewed.
On 21 December 2000 the director of the children’s home informed the District Office that the applicant had visited her children three times since 10 November 2000 and that it had been agreed that the children would not visit the applicant in her apartment for three months.
On 22 December 2000 the Košice II District Office replied to the applicant that it did not consider it appropriate to grant her request of 20 December 2000.
The applicant reiterated her request on 30 January 2001. She relied on a medical certificate indicating that her mental health had stabilised.
On 1 February 2001 the Košice II District Office informed the applicant that there was an epidemic of influenza in the institution and that her children were undergoing treatment. The letter further stated that the District Office was unable to take a position on the children’s stay with the applicant at that time. Subsequently, on 16 February 2001, the administrative authority acceded to the applicant’s request and allowed the children to stay with their mother from 17 to 23 February 2001.
On 27 February 2001 the applicant requested that the injunctions by virtue of which her children had been placed in the care of an authority should be quashed. She explained that her situation had changed and that she was in a position to take appropriate care of her children. The applicant relied on the relevant provision of the Administrative Proceedings Act which obliged administrative authorities to quash their decisions on an injunction where the reasons for such a measure were no longer valid.
On 7 March 2001 the Košice II District Office dismissed the request. Its letter to the applicant stated that there existed no justification for quashing the injunction prior to a final determination of the issue by a court.
Subsequently in the course of 2001 the Košice II District Office allowed the children to spend the Easter holiday, a part of the summer and autumn school holidays, as well as the Christmas holiday, with the applicant.
In the meantime, on 9 February 2001, the applicant lodged a petition with the Constitutional Court. She alleged a violation of Article 41(4) of the Constitution with reference to the above administrative decisions concerning the placement of her children in an institution. She stated, inter alia, that her children had been taken away from her for an excessively long period of time and that the administrative authorities had refused to quash their injunctions notwithstanding that the reasons therefor were no longer valid.
On 22 March 2001 the Constitutional Court rejected the applicant’s petition. It held that it lacked power to review, in the context of the proceedings brought by the applicant, the conformity of the relevant provisions of the Family Act and of the Social Assistance Act with Article 41(4) of the Constitution. As to the applicant’s complaint that the administrative authority had refused to return the children to her, the Constitutional Court relied on section 68(a)(1) of the Social Assistance Act and noted that judicial proceedings concerning the placement of the applicant’s children in an institution were pending. Prior to the outcome of those proceedings the Constitutional Court could not entertain the applicant’s complaint.
On 2 July and on 29 October 2001 the applicant requested that the Košice II District Court proceed with the case concerning the custody of her children.
The Košice II District Court held hearings in the case concerning the custody of the applicant’s children on 11 December 2001 and on 8 January 2002. On the latter date it delivered a judgment ordering that the applicant’s children should not be placed in an institution. The court noted that the representatives of the competent authorities had stated that the education of the children in an institution was no longer necessary as the applicant’s situation had changed, and that the children themselves wished to return to the applicant. The District Court had difficulties in serving the judgment on the applicant’s former husband. Its judgment became final on 13 September 2002.
On 11 January 2002 the applicant requested, with reference to the above judicial decision, that the children be conditionally allowed to live with her pending the final effect of that judgment.
On 17 April 2002 the applicant again requested that the injunctions concerning her children be quashed. On 19 April 2002 the Košice II District Office replied that the injunctions had lost their effect following the District Court’s decision of 8 January 2002.
B. Relevant domestic law
1. The Constitution
Article 41(1) guarantees, inter alia, special protection of children and juveniles.
Article 41(4) provides that parents have the right to take care of their children and to educate them. Parental rights can be restricted and children under age can be separated from their parents against the latter’s will only pursuant to a judicial decision taken in accordance with a law.
Under paragraph 6 of Article 41, a law shall specify further details concerning the rights under Article 41 paragraphs 1 to 5.
Pursuant to Article 152(4), the interpretation and application of constitutional laws, ordinary laws and other generally binding legal rules have to be in accordance with the Constitution.
2. The Family Act (Act 94/1963 Coll.)
At the relevant time, the following provisions of the Family Act were in force.
Pursuant to section 42(2), only a court is entitled to take measures restricting parental rights.
Under section 45(2), a court may order that a child be educated in an institution where the education of the child is seriously threatened and where it has been impossible to redress the situation by other means or where the parents are unable, for other serious reasons, to ensure an appropriate education of the child.
Section 46 obliged the competent local government authorities, in cases of urgent need, to take interim measures even on issues which otherwise fell within the jurisdiction of a court. Such a measure was to be notified to the competent court without delay. The court was to determine the issue subsequently. This provision was repealed as being contrary to Article 41(4) of the Constitution and to Article 9 of the Convention on the Rights of the Child with effect from 1 April 2002 (Act 127/2002 Coll.)1.
3. The Social Assistance Act (Act 195/1998 Coll.)
Section 68(a)(1), as in force at the relevant time, entitled district offices to order the immediate removal of a child from his or her family pending the determination of the issue by a court. That provision was deleted with effect from 1 February 2004 (Act 453/2003 Coll.).
At the relevant time section 68(h) obliged district offices to provide educational care to families where the education and development of a child were seriously threatened or disturbed as well as to families from which it was necessary to remove a child immediately with a view to replacing the parental care by the care of other persons.
4. Civil Code
Articles 11 et seq. of the Civil Code provide for the protection of one’s personal rights. To the extent relevant, they read as follows:
“Every natural person shall have the right to protection of his or her personal integrity, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.”
“1. Every natural person shall have the right in particular to request an order restraining any unjustified interference with his or her personal integrity, an order cancelling out the effects of such interference and an award of appropriate compensation.
2. If the satisfaction afforded under paragraph 1 of this Article is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party shall also be entitled to financial compensation for non-pecuniary damage.
3. When determining the amount of compensation payable under paragraph 2 of this Article, the court shall take into account the seriousness of the harm suffered by the injured party and the circumstances in which the violation of his or her rights occurred.”
5. Administrative Proceedings Act
Pursuant to section 43(1), an administrative authority can issue an interim measure prior to the termination of proceedings to the extent that it is necessary for their purpose. Such an interim measure has to be revoked as soon as the reason for it is no longer valid; otherwise, it loses its effect on the date on which a final decision is given on the point in issue.
C. Convention on the Rights of the Child
Article 9 of the Convention on the Rights of the Child, in so far as relevant, reads as follows:
“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.
2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.” ...
The applicant complained under Article 8 of the Convention that her right to respect for her family life had been violated.
The applicant complained that her right to respect for her family life had been violated in the context of the placement of her children in an institution. She relied on Article 8 of the Convention, the relevant part of which reads as follows:
“1. Everyone has the right to respect for his ... family life, ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government objected that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. They maintained that it had been open to the applicant to obtain redress by means of an action under Articles 11 et seq. of the Civil Code for the protection of her personal rights.
The applicant objected that an action for the protection of her personal rights was not a remedy which she was required to exhaust for the purpose of Article 35 § 1 of the Convention. She complied with that requirement in that she had sought redress before the Constitutional Court.
The Court notes that the applicant sought redress before the Constitutional Court which found that it (i) lacked power to review, in the context of the proceedings brought by an individual person, the conformity with Article 41(4) of the Constitution of the relevant provisions of the Family Act and of the Social Assistance Act, and (ii) could not entertain the applicant’s complaint concerning the placement of her children in an institution pending the outcome of the judicial proceedings on that issue. The Constitutional Court’s decision does not suggest that the applicant should have sought redress by means of an action under Articles 11 et seq. of the Civil Code. Similarly, the Court is not persuaded that a civil court dealing with an action for the protection of the applicant’s personal rights would have examined the justification of the contested injunction at a time when the necessity of the placement of the applicant’s children in an institution fell to be determined, in accordance with the relevant law, in a different set of proceedings brought by the Košice II District Court on 5 September 2000.
It follows that the application cannot be rejected for the applicant’s failure to exhaust domestic remedies.
The Government further admitted that the injunction in issue had interfered with the applicant’s right to respect for her family life. The interference had been in accordance with the relevant provisions of both the Family Act and the Social Assistance Act, and it had pursued the legitimate aim of the protection of health and morals of the applicant’s children. With reference to the circumstances of the case described above, the Government maintained that the interference in issue had been “necessary in a democratic society”. In particular, it had been required as the applicant had not behaved in an appropriate manner. The social authorities had had regard to statements of psychologists who had examined the children. Their decisions were interim measures, the final decision on the point in issue falling within the jurisdiction of a court. Furthermore, the social authorities had regularly reviewed the position in the case and they had gradually permitted the applicant to renew regular contacts with her children. The interference complained of had therefore been proportionate to the legitimate aim pursued.
The applicant maintained that the children had been taken away from her as a result of injunctions issued by an administrative authority despite the fact that such a procedure was not permissible under Article 41(4) of the Constitution. The interference with her rights had thus not been “in accordance with a law” as required by paragraph 2 of Article 8 of the Convention.
The interference in issue had not been “necessary in a democratic society” either. In particular, the applicant maintained that the administrative authorities had issued their injunctions without having attempted to offer her any of the various forms of assistance for which the relevant law provided. Furthermore, the administrative authority had refused to consider the possibility of quashing the injunction in view of the change in the applicant’s situation, affirming only that a final decision on the case fell to be given by a court. As a result, her children had been placed in an institution under the above injunctions for 20 months in disregard of the fact that the reasons for taking the children away from her had fallen away much earlier. The applicant had been allowed to take her children home for a limited period of time for the first time in February 2000, that is some 10 months after the injunction had been issued.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
T.L. Early Nicolas Bratza
1 The fact that section 46 was contrary to Article 41(4) of the Constitution and to Article 9 of the Convention on the Rights of the Child is indicated, for example, in the Explanatory Report to the Government’s draft Family Act elaborated in 2004.
BERECOVÁ v. SLOVAKIA DECISION
BERECOVÁ v. SLOVAKIA DECISION