CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 12 mai 2015

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s8578A85B { margin-top:0pt; margin-bottom:0pt; text-indent:11.6pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .s9E304268 { width:190.42pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }   FIFTH SECTION DECISION Application no. 30052/13 Mirka PRODĚLALOVÁ against the Czech Republic The European Court of Human Rights (Fifth Section), sitting on 12   May   2015 as a Committee composed of:   Angelika Nußberger, President,   Boštjan M. Zupančič,   Vincent A. De Gaetano, judges, and Milan Blaško, Deputy Section Registrar, Having regard to the above application lodged on 22 April 2013, Having deliberated, decides as follows: THE FACTS The applicant, Ms Mirka Prodělalová, is a Czech national, who was born in 1958 and lives in Jihlava. She was represented before the Court by Mr   D.   Zahumenský, a lawyer practising in Brno. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant is a mother of twins born in 1997. 1.     The facts which gave rise to the applicant’s previous application no.   40094/08, terminated by the Court judgment of 20   December   2011 Following her separation from the children’s father in 2001, the applicant agreed to share custody with him. In November 2002, the father obtained an interim custody order and the applicant was granted visiting rights. On 3 March 2004, the court awarded custody of the children to their father who – according to an expert report - had better educative skills. The applicant’s visiting rights were limited, mainly because of her manipulative behavior. Later, the children’s father filed a lawsuit (no. 0 P 40/2005) seeking to deprive the applicant of her visiting rights and parental authority. By an interim measure of 19 December 2007, the applicant was deprived of her visiting rights due to her inappropriate behavior and the children’s psychological problems. By a judgment of the first-instance court rendered on 16 August 2010, the applicant was deprived of her visiting rights and parental authority. The court relied on numerous pieces of evidence, including social authority’s reports on the children’s negative attitude towards the applicant and several expert reports. The applicant lodged an appeal which did not have any suspensive effect. The proceedings on the merits were still pending at the time of the Court’s judgment of 20 December 2011, in which the Court found a   violation of Article 8 mainly because of the length of the proceedings no.   0   P 40/2005, during which the interim arrangement, particularly restrictive for the applicant, had consolidated. On 11 September 2013, the execution of the judgment by the Committee of Ministers was closed on the grounds that, meanwhile, the impugned proceedings had ended by a   decision forbidding the contact between the applicant and her children, thus no individual measures were required. 2.     New developments In February 2012 a case conference was planned to be held on the family’s situation. It did not take place, though, since, on 17 February 2012, the appellate court upheld the judgment of 16 August 2010. After having heard both children who refused any contact with their mother, the appellate court observed that the applicant, lacking empathy, had not been able, in the past, to restore the contact with her children. It was thus not in the children’s interest to see the applicant, nor was it possible, given the children’s age, to force them to meet her. The appellate court also held that the applicant’s past and present behavior rendered necessary the decision depriving her of her parental authority. According to the applicant, she was not duly represented in the appellate proceedings because the court disregarded the fact that she had revoked the authority of the counsel appointed by the Czech Bar Association. The applicant filed simultaneously an appeal on points of law, aiming at the decision depriving her of her parental authority, and a constitutional appeal. On 25 October 2012, the Constitutional Court rejected her constitutional appeal for being premature because the appeal on points of law was still pending at that time. It was rejected as inadmissible by the Supreme Court on 31 October 2012, on the grounds that the applicant had failed to formulate any question of crucial legal importance. On 18 February 2013, the applicant lodged a second constitutional appeal which is still pending. COMPLAINTS 1.     The applicant complained under Article 8 of the Convention about the failure of the State authorities to take positive measures aiming at the protection of her parental rights, as well as about the final decision depriving her of her visiting rights and parental authority. 2.     Relying on Article 6 she also complained about the Constitutional Court’s decision of 25 October 2012, claiming that her appeal on points of law could challenge only the decision on parental authority, not the decision on the contact with her children. THE LAW A.     Alleged violation of Article 8 of the Convention The applicant complained under Article 8 of the Convention that the State authorities did not comply with the Court’s judgment of 20   December   2011 in that they had not taken any positive measures to protect her parental rights and they had eventually deprived her of any contact with her children, although she had not been duly represented before the appellate court. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” (i) The Court observes at the outset that in her argumentation submitted to the Court, the applicant extensively criticizes the interim measures of November 2002 and December 2007 as well as various facts prior to the Court’s judgment of 20 December 2011. However these were taken into account during the examination of the applicant’s previous application no.   40094/08 and, consequently, the Court cannot rule on them again. In this respect the application is thus substantially the same as a matter that has previously been examined by the Court and is inadmissible within the meaning of Article 35 §§ 2 (b) and 4 of the Convention. (ii) It is true that when ruling on the applicant’s previous application no.   40094/08, the Court did not and could not review the very content of the national courts’ final conclusions on the determination of the applicant’s contacts with her children as the appellate court upheld the judgment of 16   August 2010 only on 17 February 2012, i.e. two months after the Court’s judgment of 20 December 2011 in the application no. 40094/98, The execution of the Court’s judgment was closed by the Committee of Ministers on 11 September 2013. The Court’s judgment did not require any positive measures to protect the applicant’s parental rights. On the contrary, the Court itself noted in its judgment of 20 December 2011 (§ 64) that restoring of contacts between the applicant and her children was not really conceivable. In any event, the Court observes that the applicant’s constitutional appeal of 18 February 2013 is still pending. Upon this appeal, the Constitutional Court is also called to examine the very decision forbidding the applicant any contact with her children and depriving her of her parental authority, as well as her complaint concerning the lack of due representation before the appellate court. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. B.     Alleged violation of Article 6 § 1 of the Convention The applicant also complained that the refusal of the Constitutional Court to examine her first constitutional appeal amounted to an infringement of Article 6 § 1 of the Convention, in particular her right of access to a court. She pointed out that while the appeal on points of law could aim only at the decision on the deprivation of parental authority, her constitutional appeal was formulated in much broader manner. Article 6 § 1 of the Convention provides as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a   fair ... hearing ... by [a] ... tribunal...” The Court notes that the applicant’s first constitutional appeal was rejected as premature, which did not prevent her from lodging a second one once the Supreme Court rejected her appeal on points of law. Thus the applicant still has the possibility to have all her complaints examined by the Constitutional Court because her second constitutional appeal is pending (see, mutatis mutandis , Soffer v. the Czech Republic , no. 31419/04, 8   November 2007). It cannot therefore be concluded, at present, that she was deprived of her right of access to a court. Consequently, the applicant’s complaint under Article 6 § 1 of the Convention must be rejected as manifestly ill-founded, pursuant to Article   35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Done in English and notified in writing on 4 June 2015.   Milan Blaško   Angelika Nußberger Deputy Registrar   President