CYIL 2012

ĽUBOMÍR MAJERČÍK ȃ ANNA MATUŠINOVÁ ȃ HUBERT SMEKAL CYIL 3 ȍ2012Ȏ held that under the specific circumstances and considering the usual criteria (the complexity of the case, the conduct of the applicant and of the authorities and what was at stake for the applicant), the national proceedings were indeed unreasonably long. 37 Furthermore, it found that due to the low amount of compensation, the applicants suffered an interference with their property rights. However, this deprivation of possessions pursued a legitimate aim – attenuation of the effects of the infringements of property rights that occurred under the communist regime. Compared to the previous restitution cases, the Court newly took into account the privileged (illegal) purchase terms in 1977 granted to one of the applicants for his communist accomplishments. The Court recognized that the legitimate aim of the restitution process may be seen more broadly as a restoration of the rule of law, and October 2011 was quite a busy month for judgments against the Czech Republic. Besides the three already mentioned cases the Court issued a judgment concerning Mr. Bergmann . 38 The applicant is a father of a child who had been under custody of the mother. In 2002 the father instituted proceedings seeking access to his child and later courts granted this request as a preliminary measure. Due to the length of the proceedings on the merits and obstructions by the mother, who prevented their meetings, the Regional Court dismissed the request for the access. Mr. Bergmann turned to the ECtHR alleging that the procedure relating to the access to the child did not meet requirements of fairness, impartiality and reasonable time 39 and therefore his right to respect for his family life (Article 8) had been violated. The Court held that the authorities should adopt such measures that would have allowed the contact between a parent and a child even if there were disputes between the parents concerning contact with the child. 40 According to the Court, the Czech authorities failed in their obligation to protect parental rights of the applicant by not adopting any suitable measures. 41 The Court concluded that the inability of state 37 Interestingly, it took almost five years for the ECtHR to issue this judgment. In that light, fourteen years before all three instances of Czech courts as well as the Constitutional Court do not seem too much. 38 Bermann v the Czech Republic App no 8857/08 (ECHR, October 2011). The judgment is not final. 39 Concerning the emphasis on the reasonable time the ECtHR referred to the case of Macready v the Czech Republic App no 4824/06, 15512/08 (ECHR, April 2010) in which it considered that the passage of time could have irremediable consequences for the relations between children and a parent who did not live with them. The authorities need to react as quickly as possible in order to re-establish the child’s initial situation and avoid the legal consolidation of de facto situations that had been brought about wrongfully from the outset (paragraph 47 to 49). The Court held that these principles could be applied in any other cases which affect the private or family life of applicants. 40 Mutatis mutandis Mihailova v Bulgaria App no 35978/02 (ECHR, January 2006). Complete interruption of ties can be justified only in exceptional cases. Scozzari et Giunta v Italy ECHR 2000 VIII 39221/98, 41963/98. 41 The court might order family therapy according to Pedovič v the Czech Republic App no 27145/03 (ECHR, July 2006) or contact between a father and a child under specialized supervisory, Mezl v the therefore Article 1 of Protocol No. 1 was not violated. 9. Does a parent have the right to contact a child?

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