MARCOSKI AND RATH v. THE CZECH REPUBLIC (European Court of Human Rights)

Last Updated on April 28, 2019 by LawEuro

Communicated on 28 March 2019

FIRST SECTION

Application no.5027/19
Veronika MARCOSKI and Lukáš Nicolas RATH
against the Czech Republic
lodged on 15 January 2019

SUBJECT MATTER OF THE CASE

The first applicant, Mrs Veronika Marcoski, is the mother of the second applicant, Lukáš Nicolas Rath.

The application concern:

1.  alleged violation of the right to respect for family life of the applicants (mother and her son) on account of the alleged failure of the courts to set a reasonable time frames and conditions for their contact (Article 8 of the Convention);

2.  alleged violation of the applicants’ right to access to court on account of the refusal of the Constitutional Court to review the applicants’ complaint on the merits (Article 6 § 1 of the Convention).

QUESTIONS tO THE PARTIES

1.  Have the interim measure of 2 February 2018 and the subsequent developments in the applicants’ case, amounted to an interference with the right to respect for the applicants’ family life, taking into account notably the time frames and conditions set for contact of the two applicants?

If so, has such interference been “in accordance with the law” and “necessary in a democratic society” in the interests of one of the aims permitted under paragraph 2 of that Article? In view of all the circumstances, has there been a violation of the applicants’ right to respect for their family life that encompasses a right to the mutual enjoyment by parent and child of each other’s company, contrary to Article 8 of the Convention?

2.  Have the domestic authorities fulfilled their positive obligation under Article 8 of the Convention to act in a manner calculated to enable an existing family tie to develop (see Sommerfeld v. Germany [GC], no. 31871/96, § 63, ECHR 2003‑VIII; Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 140, ECHR 2010)?

3.  Has the restriction on contact between the two applicants been of such nature that the family relations between a young child and his mother were effectively curtailed (see Elsholz v. Germany [GC], no. 25735/94, § 49, ECHR 2000‑VIII; Kutzner v. Germany, no. 46544/99, § 67, ECHR 2002-I)?

4.  Have the interim measures of 2 February 2018 and the subsequent developments in the applicants’ case been in the best interest of the child? Have the interests of the child been sufficiently taken into account (see Sahin v. Germany [GC],no. 30943/96, § 64, ECHR 2003‑VIII; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 169, ECHR 2000-VIII)?

5.  Has the Constitutional Court’s refusal to review the applicants’ complaint on the merits given rise to violation of the applicants’ right to access to court, contrary to Article 6 § 1 of the Convention?

6.  Having regard to the applicants’ complaints under Article 6 § 1 of the Convention – which falls to be examined under Article 8 of the Convention – has the above approach of the Constitutional Court given rise to a violation of the procedural requirements inherent to Article 8 to ensure proper respect for, inter alia, family life?

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