[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF
BERECOVÁ v. SLOVAKIA
(Application
no. 74400/01)
JUDGMENT
STRASBOURG
24
April 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Berecová v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K.
Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J.
Šikuta, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 27 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 74400/01) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Slovakian national, Mrs
Adriana Berecová (“the applicant”),
on 21 June 2001.
- The
applicant was represented by Mrs I. Rajtáková, a lawyer
practising in Košice. The Government of the Slovak Republic
(“the Government”) were represented by their Agent,
Mrs M. Pirošíková.
- The
applicant alleged that her right to respect for her family life had
been violated in that her children had been placed in institutional
care.
- By
a decision of 19 September 2006 the Court declared the application
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1951 and lives in Košice.
- 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 1993 respectively. The 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 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 be placed in a children's home
temporarily. As the mother had acknowledged mistakes in her behaviour
and had shown her willingness to take appropriate care of her
children, the reports recommended that the possibility of returning
the children 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 NiZná 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
pursuant to Article 130 § 3 of the Constitution 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 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 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 that judgment becoming final.
- 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 ceased to
have effect following the District Court's decision of 8 January
2002.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution and practice of the
Constitutional Court
- 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
under-age children 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.
- In
its judgment II. ÚS 8/97 the
Constitutional Court held that Slovakia was a State of law where the
Constitution was fundamental source of law. The Constitution was
superior to all other sources of law which implied that all legal
rules had to conform to the Constitution.
B. 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 was entitled to take measures
restricting parental rights.
- Under
section 45(2), a court could order that a child be educated in an
institution where the education of the child was seriously threatened
and where it was impossible to redress the situation by other means
or where the parents were unable, for other serious reasons, to
ensure the 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 Article 9 of
the Convention on the Rights of the Child with effect from 1 April
2002 (Act 127/2002 Coll.).
C. 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.).
D. Administrative Proceedings Act (Act 71/1967 Coll.)
- Pursuant
to section 43(1), an administrative authority can issue an interim
measure prior to the termination of proceedings to the extent that
such a measure is necessary. Paragraph 2 of section 43 provides that
an interim measure has to be revoked as soon as the reason for it is
no longer valid; otherwise, it ceases to have effect on the date on
which a final decision is given on the point in issue.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that her right to respect for her family life
had been violated by 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 admitted that there had been an interference with the
applicant's right under Article 8 of the Convention to respect for
her family life. At the relevant time, the applicable ordinary law
had been inconsistent with the Constitution. The Government concluded
that, for that reason, the interference in issue had not been “in
accordance with the law”.
- The
applicant maintained that the interference had been neither “in
accordance with the law” nor “necessary in a democratic
society” as required by Article 8 § 2 of the Convention.
- The
Court finds, and it has not been disputed between the parties, that
the placement of the applicant's children in an institution pursuant
to injunctions issued by administrative authorities amounted to an
interference with the applicant's right under Article 8 § 1 of
the Convention to respect for her family life.
- The
relevant provisions of the Family Act of 1963 and the Social
Assistance Act of 1998 then in force prevented the applicant from
having the decisions in issue given by administrative authorities
reviewed by a court. This situation was contrary to Article 41(4) of
the Constitution which permits the separation of under-age children
from their parents against the latter's will only pursuant to a
judicial decision. It was incompatible with Article 152(4) of the
Constitution under which the interpretation and application of, inter
alia, ordinary laws have to be in accordance with the
Constitution.
- The
interference in issue was thus contrary to the Constitution which, as
the Constitutional Court found, is the fundamental source of law in
Slovakia to which the other legal rules have to conform. As a result,
that interference was not “in accordance with the law” as
required by Article 8 paragraph 2 of the Convention. In these
circumstances, there is no need for the Court to determine whether or
not the interference was “necessary in a democratic society”
within the meaning of that paragraph.
- The
Court has noted that the relevant provisions of ordinary laws
concerned were subsequently repealed as being contrary to the
Constitution. This cannot, however, affect the position as regards
the present application.
- There
has accordingly been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 500,000 Slovakian korunas (SKK) as compensation for
non-pecuniary damage. That sum was the equivalent of approximately
14,500 euros.
- The
Government objected that the sum claimed was excessive.
- Having
regard to its practice and the particular circumstances of the case,
the Court awards the applicant EUR 2,500 for non-pecuniary damage
resulting from the violation found.
B. Costs and expenses
- The
applicant claimed SKK 83,200 (the equivalent of approximately 2,400
euros) in respect of her costs and expenses. That sum comprised SKK
15,000 in respect of the proceedings before the administrative
authorities, SKK 15,000 in respect of the proceedings before the
Constitutional Court as well as SKK 41,300 in respect of the
proceedings before the Court.
- The
Government argued that the costs incurred by the applicant in the
proceedings before the administrative authorities were unrelated to
the alleged violation of her rights under Article 8 of the
Convention. Furthermore, the applicant had not been required to use
the constitutional remedy as it had not been effective for the
purpose of Article 35 § 1 of the Convention at the relevant
time. As to the costs related to the proceedings under the
Convention, the Government invited the Court to award a reasonable
amount corresponding to the circumstances of the case.
- In
accordance with the Court's practice, costs incurred in the domestic
proceedings may only be reimbursed in so as far as they were
necessary in order to prevent or redress the violation found (see,
for instance, Moser v. Austria, no. 12643/02, § 115,
21 September 2006).
- In
the present case, the Court notes that it was the applicant's conduct
which gave rise to the proceedings complained of (see paragraph 22
above). It therefore considers it appropriate to award only a part of
her costs related to the proceedings before the administrative
authorities, namely EUR 250. The applicant's petition under Article
130 § 3 of the Constitution was not an effective remedy which
the applicant was required to use (see Šupa
v. Slovakia (dec.), no. 72991/01, 6 February 2007, with further
references). No award should therefore be made in that respect. As
to the Convention proceedings, the Court awards EUR 1,250
corresponding approximately to the sum claimed.
- Consequently
a total amount of EUR 1,500 is awarded to the applicant under the
head of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 8 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,500 (two
thousand five hundred euros) in respect of non-pecuniary damage and
EUR 1,500 (one thousand five hundred euros) in respect of costs and
expenses, to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
