L.P v. Czech Republic

International Covenant on Civil and Political Rights: Article 2(3) and Article 17

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The author of the communication is L.P., a Czech citizen and has a son who was born in 1989.

In March 1991, the author separated from his wife Ms. R.P., and mother of his son. Since then his son had been under the exclusive care of the mother, and the author had been contact with him.

On 12 July 1993 in a preliminary court decision from the Regional Court Prague West the author was granted the right to see his son every second weekend from Saturday morning until Sunday evening, this was later confirmed in a further preliminary court decision of 2 October 1995.  However, Ms. R.P. did not comply with the decisions and had refused the author regular access ever since.  Only during 1994 and 1995 was the author allowed to see his son on an irregular basis, but under the surveillance of a family member of Ms. R.P. or armed security officers.  Ms. R.P. had been repeatedly fined for her refusal to comply with the courts’ decisions. In 1994, the author initiated criminal proceedings against her for not complying with the court decisions, in accordance with the Criminal Code No. 140/1961 Coll.  The case was dealt with by the Court of Okresní soud Ústí nad Labem, and had at the time of the author’s submission to the Committee, not yet been decided.

Subsequently, the author brought new criminal charges against Ms. R.P. for not complying with further preliminary decisions granting the author access to his son from December 1997 to August 1998.  The case was held over for two years, from 11 January 1999 until 14 February 2001, when eventually the judge withdrew from the case.  The new judge dismissed the charges against Ms. R.P.   The author alleged that this decision was not notified to the parties in accordance with law, and it therefore did not enter into force. The author’s complaint to the Constitutional Court was dismissed.

On 18 November 1993, the Kladno Regional Court convicted Ms. R.P. of three criminal acts relating to the custody case. The decision was appealed, but before the verdict of the Court of Appeal, Ms. R.P. was granted a pardon for two of the criminal acts, the third remained undecided, and eventually became time-barred. On 20 November 1995, the author submitted a constitutional complaint, which was rejected on the ground that the author had not been a party to the criminal case.

On 1 June 1992, a court specialist MUDr. J.K., and MUDr. J.B., explained that the author’s wife suffered from a mental disorder in the development of her personality. In another statement by MUDr. J.C. and PhDr. H.D. of 11 May 1993, it was stated that the author’s wife was damaging the interests of their son by not allowing contact between the father and the son. These statements were supported by statements from a court specialist, PhDr. V.F., of 14 May 1995 and 15 April 1997.

The author claimed a violation to his and his son’s right under Article 17 (protection against arbitrary or unlawful interference with privacy, family, home or correspondence, protection against unlawful attacks honor and reputation), and under Article 2, paragraph 3 (right to remedies), of the Covenant. The author alleged violations of his and his son’s rights to protection of their family life, including his right to regular access to his son. The author claimed that the Czech authorities have refused to act upon the court decisions allowing him regular access to his son.

On 28 February 2002, the State party made its submission on the admissibility and merits of the communication. It regarded the communication as inadmissible for non-exhaustion of domestic remedies and for being manifestly ill-founded.

Regarding the facts, the State party explained that the divorce proceedings between the author and his wife, which commenced in 1989, were still pending.  The custody of their son was therefore regulated by provisional orders. It stated that on 22 November 1994, the author brought criminal charges against Ms. R.P. for obstructing the execution of a court decision.

On 16 September 1997, a hearing took place before the District Court in Usti.  In that hearing, the author demanded information about his procedural rights. The judge advised him to read the Criminal Procedural Code, Act No. 141/1961, Section 43.  The author refused to do so, and pleaded that the judge, the prosecuting attorney, and all attorneys at the District Public Attorney’s office were biased against him. He informed the court that he had brought criminal charges against the judge. On 19 September 1997, the court decided that the judge would not be disqualified for bias. The next hearing of the criminal case was scheduled for 23 February 2001, the case was still pending.

On 29 December 1994, the author again brought criminal charges against Ms. R.P. for the crime of oppression. However, the police decided, on 30 June 1995, not to proceed with the case.

The Public Attorney initiated separate criminal charges against Ms. R.P. for obstructing the execution of a court decision pursuant to the Criminal Code, Section 171, paragraph 3, at the District Court in Ustí nad Labem. The hearing took place on 13 May and 17 August 1999 and both the author and his wife were heard. The case was still pending.

The Public Attorney initiated yet another criminal case against Ms. R.P, on the basis of criminal charges filed by the author. However, the investigator decided to discontinue the proceedings, on the basis of an opinion of a specialist in clinical psychology, who stated that the author’s son was refusing to spend with the author the time ordered by the court. The author complained against the investigator’s decision. On 5 April 2000, the Public Attorney dismissed his complaint as unfounded. The author sought a review of this decision, but the complaint procedure was discontinued on 6 October 2000, on the grounds of being legally unfounded.

The author filed a total of eight constitutional complaints, seven of which were dismissed as manifestly ill-founded. The complaints concerned alleged breaches of the right to judicial protection. The one constitutional complaint that was not dismissed for being manifestly unfounded, was not considered by the Constitutional Court because it did not constitute a proper motion initiating Constitutional Court proceedings, but merely a complaint against the actions of the Public Attorney’s Office and a request for preliminary arrangements.

In respect of the admissibility of the communication, the State party argued that the author’s constitutional complaints concerned other rights than those invoked before the Committee, and the communication should be declared inadmissible for non-exhaustion of domestic remedies. Furthermore, the State party contended that the documentation provided by the author did not reveal an arbitrary or unlawful interference by the Czech authorities in terms of article 17 of the Covenant, and the communication should be declared inadmissible for being manifestly ill founded.

With regard to the merits, in relation to article 17, the State party reiterated that it had never arbitrarily or unlawfully interfered with the author’s rights in the terms of article 17 of the Covenant, and that all actions and decisions of the courts of all instances have complied with the rules of procedure set forth by Czech law.  It pointed out that the author’s numerous petitions and motions have resulted in a significant delay in the resolution of his divorce and the question of custody of his son. According to the State party, the author had accused of bias practically all authorities involved in the resolution of his family issues, including the bringing of criminal charges against investigators, attorneys and judges, as well as against his ex-parents-in-law and other persons related to Ms. R.P.

In respect of the author’s claim of a violation of article 2, paragraph 3 (a) and (c) of the Covenant, the State party contended that the communication fell outside the scope of this paragraph.

On 22 April 2002, the author responded to the State party’s submission.  He contended that the State party in several ways misrepresented the facts. He stated that the State party avoided the substance of the case, which is that  for 11 years he had been prevented from meeting his son, and that the Czech authorities had neglected to protect his rights by failing to carry out appropriate investigations regarding the criminal allegations.

With respect to the State party’s allegation that the author had not exhausted domestic remedies because he did not allege Covenant rights in his constitutional complaints, the author pointed out that he invoked the substance of the Covenant rights in maintaining that the State party did not provide him with protection from arbitrary interference with his privacy and family life.

Regarding the State party’s contention that the author’s numerous submissions to the courts delayed the proceedings, the author argued that the State party confused cause and effect, and that these numerous submissions are a result of the State party’s toleration of Ms. R.P.’s behavior.

The author contended that the only criminal charge he brought against any of his son’s grandparents was against Ms. R.P.’s mother, for limiting his parental rights and attacking him verbally and physically. He also brought charges against the grandmother’s new husband, who threatened to kill the author, and was sanctioned for bodily harm caused to the author on 30 October 1999.

According to the author, Section 1 of the Criminal Code provided that criminal proceedings must act towards the strengthening of the rule of law, and anticipate and prevent criminal acts. He considered that this section of the law enforces an obligation on the State party to act in order to stop the violation of his custody rights and prevent continuous violations of the same.

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Consideration of admissibility: The Committee found admissible the claims regarding his rights, however, found inadmissible the ones referring to his son since he did not claim that he was representing him.

The Committee ascertained that the same matter was not being examined under another procedure of international investigation or settlement and therefore was admissible.

The State party alleged that the author’s constitutional complaints concerned other rights than those invoked before the Committee and thereby failed to exhaust domestic remedies. While it was not clear what the exact nature of these proceedings was, the Committee noted that the proceedings regarding divorce and custody have continued for 13 years without a final decision. While some delays in the proceedings may be attributed to the author, the Committee concluded that considering all the circumstances of the case, the application of the remedies had been unreasonably prolonged for the purpose of article 5, paragraph 2 (b), of the Optional Protocol.

The Committee noted that the author in his submissions also alleged that his son’s rights had been violated.  However, since he did not claim that he was representing his son, the Committee found that this part of the communication was inadmissible under article 1 of the Optional Protocol.

The Committee took note of the State party’s argument that the communication did not reveal an arbitrary or unlawful interference by the Czech authorities in terms of article 17 of the Covenant.  The Committee considered that the author has substantiated sufficiently that his communication raised issues under article 17, by the alleged failure of the State party to protect the author’s right to have access to his son.  It therefore decided that the communication was admissible.

Consideration of the merits: The Committee found a violation of Article 17 in conjunction with Article 2.

As to the alleged violation of article 17, the Committee noted the State party’s contention that there was no documentation of arbitrary or unlawful interference by the State party with the author’s family, that the decisions of courts of all instances had complied with the rules of procedure set by law. However, the communication was not based only on article 17, paragraph 1, of the Covenant, but also on paragraph 2 of the said provision.

The Committee considered that article 17 generally includes effective protection to the right of a parent to regular contact with his or her minor children. While there may be exceptional circumstances in which denying contact is required in the interests of the child and cannot be deemed unlawful or arbitrary, in the present case the domestic courts of the State party have ruled that such contact should be maintained. Consequently, the issue before the Committee was whether the State party had afforded effective protection to the author’s right to meet his son.

Although the courts repeatedly fined the author’s wife for failure to respect their preliminary orders regulating the author’s access to his son, these fines were neither fully enforced nor replaced with other measures aimed at ensuring the author’s rights. The Committee was of the view that the facts before it disclosed a violation of article 17, in conjunction with article 2 of the Covenant.

The State party was under an obligation to provide the author with an effective remedy, which should include measures to ensure prompt implementation of the court’s orders.  The State party was also under an obligation to prevent similar violations in the future.

Individual Opinion by Committee members Mr. Nisuke Ando and Mr. Prafullachandra Natwarlal Bhagwati

While agreeing with the admissibility of the communication the Committee members were unable to share the Committee’s views that the author’s rights under article 17, in conjunction with article 2 had been violated.

The provision of article 17 does not guarantee an “absolute right” of a separated father to have access to his child, who is under the mother’s custody.  The Committee should have recalled its views on Communication No. 201/1985 (Hendriks v. the Netherlands), where the same or similar situation was considered as raising issues under article 23.

The Committee seemed to conclude that the author did not receive “effective protection” as provided for under articles 17 and 2.  However, the State party had done what it could. Facing non-compliance with the court decision on the part of the mother, the Public Attorney initiated criminal charges against the mother.  In addition, the Public Attorney initiated other criminal charges against the mother on the basis of criminal charges filed by the author himself.

The Committee members took note of the fact that during the procedure of the other criminal charges, a specialist in clinical psychology stated that the son refused to spend with the father the time ordered by the court.  Considering that the son, who was well over 10 years of age, should be able to judge on his own and that the father made no comment on this particular point, the Committee members thought that the Committee should have given due consideration to the son’s own wish. What matters most in the present case is “the best interest of the child” and that the Czech courts should have concrete materials to determine the matter, while the author had not provided the Committee with sufficient materials to reverse the courts’ judgements. It has been an established jurisprudence of the Committee that it is not for the Committee but the relevant domestic courts to evaluate facts and evidence in a given case unless such evaluation suffers from impartiality or constitutes denial of justice.

The author contended that the State Party failed to enforce protection with all available means and the Committee stated that the State Party was under the obligation to provide the author with an effective remedy. However, considering the specific nature of family matters in general and the particular circumstances of the present case, judicial remedy is not omnipotent and there are certain limits over which it could not and should not go.