Does the Ministry of Justice cover the judge? It leaves aside the Convention on the Rights of the Child

The Czech Republic likes to describe itself as a democratic legal state that puts child protection first. The Constitution, the Charter of Fundamental Rights and Freedoms, the Convention on the Protection of Human Rights and Fundamental Freedoms and the Convention on the Rights of the Child form the solid foundation of our legal system. Everything is almost perfect on paper. The real problem starts when these rights are actually to be protected.

It is then that an unpleasant question arises more and more often: Does the Ministry of Justice respect the Czech Republic's own international obligations, or does it push them to the sidelines when assessing citizens' claims?

The Convention on the Rights of the Child is not a political declaration or a moral recommendation. It is a binding international treaty that is part of the Czech legal order. Article 3 states that the best interest of the child must be the primary consideration in every decision-making by public authorities. Article 9 obliges the state to respect the child's right to regular personal contact with both parents, unless it is in conflict with the child's interest. Article 8 of the European Convention approaches this, according to which the state is obliged to actively protect family life.

The European Court of Human Rights has repeatedly elaborated this obligation in its jurisprudence. In thingsHokkanen proti Finsku,Ignaccolo-Zenide against Romania,Sylvester against Austria,Koudelka against the Czech Republic,He closed against the Czech RepublicorKuppinger against Germanyhe emphasized that it is not enough to pass judgment. The state must ensure that court decisions are actually implemented and that the protection of family life is real, practical and effective. Time is of the essence in these matters. Every month of delay can irreversibly damage the child's relationship with the parent.

However, it is precisely here that a fundamental problem arises. If a citizen asks the state for compensation, claiming that the courts have long failed to provide effective protection for his family life, he would expect the Ministry of Justice to consider all aspects of the case. Instead, however, in some cases it focuses mainly on the question of the length of the proceedings and leaves aside the essence of the objection - whether the state has actually fulfilled its positive obligations towards the child and the parents.

This is not just a procedural detail. This is the fundamental difference between the formal and actual administration of justice.

The biggest paradox lies in the fact that the Ministry of Justice is the body that is supposed to take care of legality and the protection of rights. However, if, during the out-of-court hearing of claims, it does not pay adequate attention to the Convention on the Rights of the Child, Article 8 of the European Convention, or the established jurisprudence of the European Court of Human Rights, legitimate doubts arise as to whether it really fulfills its mission.

An even more serious question arises when reading some of the opinions. If the Ministry merely notes that “he stands by his conclusions", without substantively dealing with specific objections based on international treaties, what is the point of the institution of out-of-court claims under Act No. 82/1998 Coll.? Is it to be a real possibility of redress, or just an administrative obstacle before filing a lawsuit?

At the same time, the citizen does not ask for anything extraordinary. He is not asking the ministry to change the court decision. It only asks that it honestly assess whether the state, through its institutions, has fulfilled its legal and international obligations. This is a crucial difference.

Therefore, another question is also completely legitimate. Doesn't the Ministry of Justice in some cases become more like a defender of the courts' procedure than an impartial assessor of the state's responsibility? If every objection is rejected without detailed settlement, if international obligations are neglected and if attention is focused only on partial procedural issues, such a procedure may give the impression that the main goal is not to objectively assess the responsibility of the state, but to defend the procedure of the judicial power at all costs.

Such an impression is extremely dangerous for the rule of law. Of course, the Ministry of Justice is not an appeals court or a disciplinary body for judges in individual cases. However, if, when assessing the state's responsibility, it systematically overlooks objections directed against possible inaction or ineffectiveness of judicial protection, the public may perceive it as an institution that actually covers the course of justice instead of a critical review. And precisely such a perception undermines citizens' trust in justice.

At the same time, it is not only the rights of parents. The child is at the center of the whole thing. A child who, according to international law, has the right to grow up in contact with both parents, unless serious reasons prevent this. Every month of inaction, every delayed decision, and every ineffective enforcement of a court decision can mean another step toward alienation that no judgment or compensation can ever remedy.

The Ministry of Justice should therefore answer a simple question. How can it claim to have assessed the claim in accordance with the law if it does not deal with arguments based on the Convention on the Rights of the Child, Article 8 of the European Convention and the established case law of the European Court of Human Rights? And if they do not, it is not a failure of an individual, but a problem of the methodology and approach of the whole institution.

The rule of law is not recognized by the number of judgments issued or by the number of negative opinions of the ministry. It can be recognized by whether the public authorities are willing to subject their own procedure to critical review and whether they really apply the international obligations that the state has solemnly accepted in everyday practice. If the Convention on the Rights of the Child becomes only a document cited on ceremonial occasions, while in specific cases it gives way to administrative routine, then the biggest loser is not the parent. He is a child whose rights should have been protected above all.

Source:

1. Council of Europe (1994)Case of Hokkanen v. Finland(Application No. 19823/92), Judgment of 23 September 1994. European Court of Human Rights. Dostupné z: HUDOC.

2. Council of Europe (2000)Case of Ignaccolo-Zenide v. Romania(Application No. 31679/96), Judgment of 25 January 2000. European Court of Human Rights. Dostupné z: HUDOC.

3. Council of Europe (2006)Case of Koudelka v. the Czech Republic(Application No. 1633/05), Judgment of 20 July 2006. European Court of Human Rights. Dostupné z: HUDOC.

4. Council of Europe (2015)Case of Kuppinger v. Germany(Application No. 62198/11), Judgment of 15 January 2015. European Court of Human Rights. Dostupné z: HUDOC.