I. ÚS 3378/24

The appellate court violated the right to a fair trial of a non-Czech-speaking father by failing to provide adequate interpretation at a crucial stage of the proceedings, despite his evident language limitations and inability to respond to the mother's claims either directly or through his legal counsel. Furthermore, the appellate court did not properly justify its decision to award custody solely to the mother.

The mother and father (the complainant, whose primary language is French) have not shared a household since July 2023. Contact between the parents and their children was based on a mutual agreement and took the form of so-called asymmetrical care, amounting to approximately 18:12 split of days per month in the mother's favour. In May 2024, the guardianship court awarded the minor children into alternating custody, with an evenly structured weekly rotation between the parents. The court concluded that the children had established full relationships with both parents, that each parent had created appropriate living conditions for the children, and that both were communicating with and properly caring for them. The minors would not need to adjust to a new regime, as alternating custody – albeit asymmetrical – had already been taking place. By the contested judgment, the appellate court overturned the first-instance decision and awarded custody to the mother, granting the father so-called extended contact in a ratio of roughly two-thirds to one-third. It concluded that the guardianship court had insufficiently assessed the essential criterion of parental communication, which, in this case, was so poorly established that the parents were unable to reach agreements regarding the children's basic needs. Additionally, the father had not paid outstanding maintenance, and a significant share of both the practical care and financial provision for the daughters rested on the mother.

In his constitutional complaint, the father sought the annulment of the above decisions. He primarily argued that the appellate court, contrary to the best interests of the children, awarded custody to the mother and, during the hearing, violated his fundamental right to an interpreter.

The First Panel of the Constitutional Court (Justice Rapporteur Jaromír Jirsa) partially granted the constitutional complaint and annulled the contested judgment. The Panel addressed two key issues: first, whether the appellate court had ensured the complainant's full and effective participation in the proceedings when it conducted the hearing without the presence of an interpreter, even though he did not have sufficient command of Czech; and second, whether the same court had provided constitutionally adequate reasoning as to why it was not in the best interests of the daughters to be placed in alternating custody between both parents.

As to the first issue, the Constitutional Court stated that the guarantees of the right to a fair trial imply that when court proceedings are conducted in the presence of a person seeking judicial protection, conditions must be ensured that allow the person to participate meaningfully. For the right to an interpreter to be practical and effective, it cannot be confined solely to the initial phase of the proceedings – such as when the court appoints an interpreter or when the party declares that they understand the language, thereby waiving the right to an interpreter. It is the judge's responsibility, where an objectively ascertainable need exists, to communicate sufficiently with the party and to ensure that their right to use a language they understand is genuinely fulfilled throughout the entire proceedings. In such cases, the judge must ensure that, where objectively necessary, the absence of a court-appointed interpreter does not prevent the party from fully engaging in the hearing – especially through their legal counsel – if such engagement is necessary for the exercise of the party's fundamental rights. Put simply: the inability of a present party to participate effectively in proceedings through their legal counsel due to language barriers may, in certain circumstances, lead to a breach of the principles of fair trial.

In the present case, the Constitutional Court found no constitutional fault with the initial procedural approach taken by the appellate court, which had to respond to an unexpected situation caused by the absence of a duly summoned interpreter. The presiding judge reacted flexibly and reached an agreement with the complainant's legal counsel that she would interpret the proceedings for the complainant with the assistance of a member of the panel who understood and spoke French. On the basis of this arrangement, the appellate court ensured the father's effective and full participation in most of the hearing. According to the Constitutional Court, however, a constitutionally problematic moment occurred later, when the appellate court engaged in direct communication with the mother. For approximately twelve minutes, she presented a series of assertions concerning, in particular, the father's ability to care for the children, the nature of contact during the summer, the parents' ability to communicate, and financial matters. At this stage of the hearing, the complainant's counsel explicitly stated that she was unable to interpret the mother's statements in real time and that, as a result, the complainant was unable to respond to them. In view of the Constitutional Court, the appellate court failed to respond in a manner consistent with constitutional requirements. Once the legal counsel had expressly informed the panel that she could no longer adequately interpret the mother's factual statements to the father, the appellate court was obliged to provide sufficient procedural space to remedy the situation. This was an objectively ascertainable indication that the complainant's fundamental right to interpretation was no longer being fulfilled in practice (in material terms).

Regarding the second issue under consideration – namely, the reasoning behind the decision to award custody of the daughters to the mother – the Constitutional Court based its assessment on the constitutional principle of the equality of parental rights and on long-established case law identifying alternating custody as the default model. While the equal involvement of both parents in the care of a child can generally also be achieved through sole custody with so-called extended contact for the other parent, guardianship courts are constitutionally obliged to consider the possibility of so-called asymmetrical alternating custody. For the parent with more limited contact, such a model may carry significant symbolic value. If a guardianship court opts for sole custody by one parent combined with extended contact for the other, it must also provide a fundamental indication as to whether, and under what specific conditions, a future transition to alternating custody would be feasible. In the present case, the appellate court did not adhere to these principles: it overturned the decision of the guardianship court and awarded custody to the mother, granting the father extended contact in a ratio of approximately two-thirds to one-third, without providing constitutionally sound reasoning for its decision.

The Constitutional Court concluded that the appellate court had violated the complainant's right to equality of arms in the proceedings, in connection with his fundamental rights to an interpreter and to have the case heard in his presence, as enshrined in Articles 37(3) and (4) and Article 38(2) of the Charter of Fundamental Rights and Freedoms. It also found a violation of his fundamental right to judicial protection in conjunction with his right to care for and raise his children, as guaranteed by Articles 36(1) and 32(4) of the Charter. The appellate court will therefore have to decide the case anew, taking into account all the constitutional principles repeatedly emphasised in the case law of the Constitutional Court.