Inactivity, delays and lost childhood: The failure of the Constitutional Court live

The Constitutional Court is often referred to as the last defender of fundamental rights and freedoms. In theory, it represents an institution that is supposed to intervene when all other branches of judicial power fail. In guardianship matters, it should be the last line of defense against arbitrariness, delays, state inaction and procedures that lead to the disruption of family life. However, the reality of recent years raises an increasingly unpleasant question: isn't the Constitutional Court part of the problem?

When looking at a number of custody disputes, the same scenario appears again and again. One of the parents creates a new factual state. He will move the child. He will change schools. Limits contact with the other parent. It starts to ignore existing court decisions. The other parent turns to the courts, OSPOD, administrative authorities, submits proposals for the enforcement of decisions, proposals for preliminary measures, complaints about delays, requests to determine a deadline and other procedural proposals. However, instead of quick protection comes months and often years of inactivity.

When the matter finally reaches the Constitutional Court, the answer is surprisingly simple. The Constitutional Court repeats that it is not the "fourth instance", that it does not review the factual conclusions of general courts and that it intervenes in decision-making only exceptionally. Formally, such a position is correct. In practice, however, it often means only one thing: no one will examine whether fundamental rights have really been protected.

A typical example of this approach is the resolution of the Constitutional Court no. stamp I. ÚS 1468/26. In the given case, the father sought protection against the situation that arose after the children were moved to another city and after their school was changed, despite the previous final judgment of the civil court. At the same time, the Supreme Administrative Court had previously in the judgment no. stamp 6 As 170/2025-37 stated that the regional court omitted essential points of the claim and did not deal with a significant part of the plaintiff's argument. In other words, the Supreme Administrative Court itself recognized that the lower court did not provide adequate judicial protection.

Nevertheless, the return of the case was followed by another rejection of the lawsuit, and finally the rejection of the constitutional complaint. Instead of a meritorious assessment of interference with parental rights, the whole matter was reduced to a question of procedural concretization of the claims. This is exactly the type of formalism that the European Court of Human Rights repeatedly criticizes.

However, the real problem is not in the individual decision. The problem is systemic. Czech courts in custody cases still failed to accept the basic principle of the jurisprudence of the European Court of Human Rights: in family matters, time is a decisive factor.

The European Court of Human Rights in the cases of Ignaccolo-Zenide v. Romania, Sylvester v. Austria, Havelka and others v. Czech Republic and recently also Novák v. Czech Republic emphasizes that the state must act quickly and effectively. If he does not act, there is a danger that the passage of time itself will decide the dispute before the court does.

This is where the Czech justice system has been failing for a long time.

The parent draws attention to the illegal relocation of the child. The court does not act.

A parent warns of a change of school. The court does not act.

The parent draws attention to obstructing intercourse. The court does not act.

A parent points out a child's loyalty conflict. The court does not act.

A parent draws attention to delays. The court does not act.

After a year or two, the same system states that the child is already adapted to the new environment, has new friends, attends a new school, and returning to the original state would not be in his interest.

Such an approach is legally and morally unacceptable. The state first allows the problem to arise and then argues the consequences of its own inaction.

The most dangerous aspect of this system is the fact that the factual situation gradually gains more weight than the legal situation. Final court decisions lose meaning if they are not enforced. The execution of the decision becomes an illusion. Preliminary measures are discussed with delay. Proposals for enforcement of decisions end without result. OSPOD often only notes the existence of a conflict and refers the participants back to court.

Meanwhile, the child becomes a hostage of a dysfunctional system.

The Constitutional Court bears special responsibility here. As a last resort, he should correct the excesses of the general courts. It should consistently demand respect for its own jurisprudence and for the jurisprudence of the European Court of Human Rights. Instead, however, in a number of cases it adopts the reasoning of lower courts and limits its review to the question of whether there has been "extreme deviation."

But basic rights cannot be protected only against extremes. They also need to be protected against slow, administrative and procedural decay. Family life is usually not destroyed by one dramatic decision. It is destroyed gradually. Month after month. Postponement after postponement. Inactivity after inactivity.

This is precisely why the current state of Czech guardianship justice is alarming. Courts often rule as if time is irrelevant. However, the European Court of Human Rights repeatedly reminds us of the opposite. The parent-child relationship cannot be frozen and restored in a few years. Every month of lost contact is an irreplaceable loss.

The Constitutional Court is therefore faced with a fundamental question. Does he want to be a true defender of constitutionally guaranteed rights, or just the last link in a system that formally makes decisions but effectively leaves parents and children to the mercy of time?

It is the answer to this question that will determine whether parental rights will really be protected in the Czech Republic, or whether they will remain only a theoretical promise on the pages of the Charter of Fundamental Rights and Freedoms.

Source:

1. EUROPEAN COURT OF HUMAN RIGHTS.Ignaccolo-Zenide v. Romania(Application no. 31679/96). Judgment of 25 January 2000. Strasbourg: European Court of Human Rights. Dostupné z:HUDOC – Ignaccolo-Zenide v. Romania

2. EUROPEAN COURT OF HUMAN RIGHTS.Sylvester v. Austria(Applications nos. 36812/97 and 40104/98). Judgment of 24 April 2003. Strasbourg: European Court of Human Rights. Dostupné z:HUDOC – Sylvester v. Austria  

3. EUROPEAN COURT OF HUMAN RIGHTS.Havelka and Others v. the Czech Republic(Application no. 23499/06). Judgment of 21 June 2007. Strasbourg: European Court of Human Rights. Dostupné z:HUDOC – Havelka and Others v. the Czech Republic  

4. MOLEK, P. a col.Convention on the Protection of Human Rights and Fundamental Freedoms. Comment. Prague: J. H. Beck, 2012. ISBN 978-80-7400-365-3.

1. BOBEK, M., BOUČKOVÁ, P. and KÜHN, Z.Equality and discrimination. Prague: J. H. Beck, 2007. ISBN 978-80-7179-584-1.