Judgment II. ÚS 3573/18 - Obligation to Consider Minor’s Attitude in Deciding to Impose Fine for Non-realised Access to the Minor

19 March 2019


On 19 March 2019 the Second Chamber of the Constitutional Court (judge rapporteur Vojtěch Šimíček) granted the constitutional complaint and quashed judgments of lower courts.


Summary


Through the resolution of the District Court to issue an interim order in connection with the resolution of the Regional Court, the complainant was ordered to allow grandparents access to the minor at specified times. Based on the application filed by the grandparents, the complainant was imposed a fine for the non-realised access to the minor by the resolution of the District Court contested by the constitutional complaint. Based on the complainant’s appeal, the Regional Court also reduced the fine by the resolution contested by the constitutional complaint. Through another resolution of the District Court contested by the constitutional complaint, the complainant was again imposed a fine for the same reason for a further period, while the Regional Court reduced the fine by its resolution also contested by the constitutional complaint.


The complainant mainly argued in the constitutional complaint that the decisions of the ordinary courts are contrary to the interests of the child, as the minor changed his position as to further meeting grandparents and refuses any access to them.


Although, in the given case, the subject of the matter adjudicated was a small claim by its nature (CZK 7,000), the Constitutional Court concluded that it is necessary to assess the submitted constitutional complaint on the merits. Due to repeated fines imposed, there was a real risk that these fines for the non-realised access will continue to be imposed upon the complainant, at least until the time of the final decision on the access with the minor.


Section 502 (1) of the Act on Special Judicial Proceedings, which was applied by the ordinary courts to the given case, assumes that the court shall order the enforcement of a decision by imposing a fine upon any person who “does not comply voluntarily with a judicial decision or a court approved agreement on the care of a minor child, or on the regulation of access to him, or a decision to return the child”. The purpose of this legal remedy is primarily to enforce the fulfilment of the obligations by the obliged person and, therefore, does not consist in sanctioning the obliged person. The fine imposed thus cannot be seen primarily as a sanction for a violation of law, but as a means of forcing the obliged person to respect the legal relationships based on the enforced title. Thus, if the identified circumstances show that the obliged person cannot comply with its obligation despite the obvious and appropriate efforts, the legal conditions for the imposition of fines cannot be considered as fulfilled.


In reviewing of the ordinary court decisions concerning the organisation of educational relations to minors, the main task of the Constitutional Court is in particular to assess whether the judicial proceedings were conducted and the measures adopted were taken in the best interests of the child. As is clear from the case-law of the Constitutional Court, in this context, the ordinary courts must take into account in particular the existence of the blood ties between the child and the person seeking custody of the child (1), the level of preservation of the identity of the child and his family ties in the case of entrusting the child to the custody (2), the ability of the person seeking custody to ensure the child’s development and physical, educational, emotional, material, and other needs (3) and the wishes of the child (4).


The Constitutional Court reviewed the contested decisions through the perspective of the mentioned criteria, while concluding that the ordinary courts did not take them into account sufficiently in their decisions. Above all, they did not take into account the last-mentioned criterion, namely the wishes of the child. In the given case, the fines were imposed upon the complainant despite the minor verbally refused access to grandparents, while with regard to the minor’s age (almost 9 years) it can be assumed that he was already able to deliberate on and consider the consequences of his conduct and to assess the obligation imposed upon the father, as well as to characterise his relationship with the grandparents. In view of the Constitutional Court, however, the Regional Court refused to reflect and take into account this negative attitude of the minor in any way. The subsequent decisions to re-impose a fine lacked completely any dealing with the above-mentioned criteria. Despite the fact that, as is evident from the file, the minor wanted to express his opinion in the proceedings, he was not allowed to do so by the ordinary courts.


In light of the foregoing, the Constitutional Court concluded that the ordinary courts by imposing fines upon the complainant unduly interfered with his right to the protection of family life under Article 10 (2) of the Charter and Article 8 (1) of the Convention. The Constitutional Court, therefore, upheld the constitutional complaint and annulled the contested decision.