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THE CZECH REPUBLIC BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS IN 2014
mother left hospital with the new-born without awaiting the passage of 72 hours.
Since, in addition, it became clear that the paediatrician chosen by the family was
unable to ensure immediate medical care which would normally be provided in the
hospital, the latter alerted the local child care authority. The same day, based on a note
of a rather general character from the hospital, unrelated to the individual situation
of the new-born, a judge applied an interim measure requested by the authority and
ordered the child’s return to hospital. The decision was promptly enforced. After
these events the parents’ requests for review of the initial decision as well as their
action for damages were rejected, the first of them for irrelevance and the second for
belatedness.
The Court found a violation of Article 8 of the Convention, having established
that there had been an interference with the applicants’ private and family life,
performed in accordance with the law and pursuing a legitimate aim, namely the
protection of the health and rights of the new-born baby, but unnecessary in a
democratic society. The Court underlined the point that the judge had not tried
to verify the individual circumstances of the case, in particular the existence of a
concrete risk for the health of the new-born child, and had not considered alternative
but less intrusive ways of reaching the same goal. No attempt had also been made to
consult the parents. Last but not least, the decision had been enforced in spite of the
absence of any obtaining health problems of the new-born. The Court also found
a violation of Article 13 of the Convention on account of the lack of any effective
remedy against the deficient, but already enforced interim measure.
The judgment is likely to result in an amendment to the relevant provisions
regulating civil procedure and compensation of damage in situations of an interim
measure already consumed. A new methodological guidance was issued by the
Ministry of Health in 2013 to the attention of hospitals as to the observance of the
72-hour delay after delivery, in line with patients’ rights to self-determination, being
understood that the circumstances of the
Hanzelkovi
case happened in 2007.
1.2 Out-of-hospital deliveries
Much more attention was given to the cases of
Dubská and Krejzová v. the Czech
Republic
(nos. 28859/11 and 28473/12, judgment of 11 December 2014, adopted
by six votes to one, which, however, did not became final due to the referral of the
cases to the Grand Chamber under Article 43 of the Convention), which concern the
wish of the applicant mothers to deliver their children at home and not in hospital.
Although the law does not formally prohibit (nor explicitly allows) mothers to
give birth outside hospital, the core of the problem resides in a subpoena ban to
health professionals (midwives) to assist at deliveries of children outside a regulated
secure environment. In other words, the law considers it unprofessional to perform
corresponding health care in the potentially risky, unequipped environment of