Strasbourg court gives cause for deliberation

The European Court of Human Rights in Strasbourg, photo:

The wheels of justice are moving too slowly. That's what the European Court of Human Rights in Strasbourg, France, has been saying in case after case against the Czech government. This year alone, the government lost at least a dozen cases in which Czechs claim their cases have lingering in the Czech court system for years. Experts tell us what's behind the problem and what might be a solution.

Jiri Fiala says all it took was a missing court file for his case to be delayed for another year.

"They lost the file, and for one year no one knew where the file was. And they were not able to indicate if it was at the district court or at the municipal court or simply what was happening, or especially when they would start to act. ... They decided to reconstruct it, so after half of a year they started with the reconstruction, and for the second half of a year it was being reconstructed."

Mr. Fiala's case highlights what's at stake for people facing the court delays that have attracted the scrutiny of the European Court of Human Rights.

The businessman is locked in a legal battle with his ex-wife over the right to visit their two sons. So the delay added one more year to the time he had already waited to see his sons. Mr. Fiala says that during the three years of legal wrangling, he hasn't had any contact with them.

In the great majority of the Strasbourg cases involving the Czech Republic, the plaintiffs have won, and judges have issued a series of rebukes of the Czech legal system for taking too long to resolve cases. That has sparked debate about what to do to make courts run more efficiently so delays no longer close the doors of justice to some Czechs.

Mr. Fiala feels those doors were slammed shut in his case.

"I was feeling - and this feeling is always strengthening - as a person of the second class, or maybe not second but third class. So it means as a person who doesn't have the full rights which are guaranteed by the laws of this state and which should be protected by the courts of this state, and simply who is unpleasant and inconvenient to many people in the courts and in the judiciary system who would like in the best way not to see him."

Eduard Bakalar works with fathers in Mr. Fiala's situation. His Consultancy for Fathers advises men trying to get child custody or visitation rights.

He says many of the men who come to his office are frustrated with the sluggish pace of Czech courts. The consultant and Charles University lecturer on divorce psychology says that to navigate custody cases, people need to educate themselves about the legal labyrinth. They'll need a good lawyer, too.

The root of the problem in Czech courts, Mr. Bakalar says, is that judges are given a free hand to deal with their caseloads.

"There are no checks or controls of effectiveness or productivity of the judges. It used to be that many, many years ago they had to fulfill a certain number of cases. They just can dwell or stay with a case many, many months or years."

Photo: Archiv of ČRo7
Mr. Bakalar says the courts are well-equipped to handle custody cases without the long delays. But he says judges' personal preferences can get in the way.

"Fathers know the courts and the social workers have measures in order to improve the situation or how to eliminate these negative aspects, but the authorities don't use them."

Lawyer Josef Nesticky, who specializes in tax and financial law, says court delays are damaging to his clients. But he doesn't place the blame on judges. He says change needs to come from the level of government. That's because it's up to the Justice Ministry to create more efficient rules of courtroom procedure.

And he says the government should put more money into modernizing Czech courts and improving conditions for judges.

"Then, press judges to decide the lawsuits as soon as possible, and don't allow the parties to prolong the lawsuit for any reason."

But the lawyer and law professor at the University of West Bohemia is optimistic because judges appointed under the Communist regime are retiring their robes.

"More young judges have been named and entered their positions as new blood. I believe that these people will be able to wag a different way than the old judges. ... They were not able to change their minds."

Mr. Nesticky says handling disputes outside of the courtroom may help make the courts more efficient. In fact, it's the focus of his law firm.

"I work with the clients to prevent lawsuits. That means I prepare the contract on the perfect level, to avoid mistakes and to prevent lawsuits. That might be a way to make the situation of the courts easier."

Judge Jan Vyklicky wouldn't disagree, since he says judges alone can't fix the delays.

He's the president of the Prague 10 District Court and honorary president of the Union of Judges. Although he agrees there are long delays in Czech courts, he says there are no more cases in Strasbourg against the Czech Republic than against other European countries.

And he doesn't think delays are everywhere.

"Of course it's a fact in some jurisdictions, not everywhere. In the criminal part of our work, everything is very, very average. We have average time spent in solving these cases. But in commercial cases, in family cases - you know the complaints of our fathers - or in some labor cases perhaps, this complaint can be right."

Still, Judge Vyklicky says thanks to the Czech Republic's communist past, some judges are too attached to bureaucratic formalities.

"In the time we tried to protect ourselves - to protect our work .... Of course it was a very efficient system, but of course in the new age we need to solve the problems. We need to solve the cases of our citizens, not to protect ourselves and to protect the judiciary."

To solve the problem of slow courts, Judge Viklicky wants to see profound changes in courtroom rules, but he says the ball is in the government's court. Judges have made reform proposals, but he says they haven't been taken up by lawmakers.

Instead, the Justice Ministry has proposed to fine judges for cases that have gone on too long. It's a plan the judge says won't change anything. He also argues that the government should not continue to give courts new responsibilities without providing resources to match.

Another issue is that the relationship between the lower Czech courts and the courts of appeals is unclear. Critics say the lower courts don't really have to heed orders from higher courts. Mr. Viklicky said this could use some clearing up.

"We need to find more effective instruments for accepting decisions at the first level, and then if there is an appeal, for quickly solving the problem in the appellate level. There is this ping-pong between this court of first instance and court of appeals. Sometimes it's the real reason of delay of cases.

Jiri Fiala says he watched his visitation case "ping-pong" between the appellate and lower courts in an appeals process that has lasted 15 months so far.

"Two different courts have noticed, or have issued, that it was a mistake from that court, it should act and the court has made serious mistakes in its work. But it's very poor compensation to see it written somewhere."