Remedy

The substantial conditions for the civil remedy for the damage caused by the violation of the personal rights set Article 13 of the Civil Code. The liability for the protection of personal right arise under three conditions. First there must be  the existence of the unjustified infringement capable to cause moral damage, secondly the existence of the moral damages caused to natural person and thirdly there is a causal connection with the infringement and damages on the personal rights. Even if only one of the condition is not met, the liability does not occur. In each of the situation one has to consider the intensity of the declared infringement and if the infringement oversteps the admissible intensity in such a way that it is no longer acceptable in the democratic society.[1] The Act does not define the intervention nor serve the forms of the infringement, the form might be passive or active one or even omitting of some duties might be considered as an infringement of the personal rights.[2]The infringement of the personal rights is unjustified if it is in contrary to the objective law. The violation must be assessed objectively with the consideration of the concrete situation, as well as to the person concerned.[3] The liability according to the Article 13 of The Civil Code is based on objective principle that does not require the fault of the infringing party.[4]

 The unjustified denying of the  access to children meets the conditions set for the liability for a breach of parents‘ personal rights. If there is a relationship between the parent and a child than the denied access is a breach of the right to privacy of the injured parent. This violation of the privacy and family life caused the immaterial harm, that consists of the emotional harm in form of the loss of the company of the child. Such an emotional harm establishes the right to claim the protection according to the civil code in respect of personal right. Such a harm is not caused under the circumstances excluding the illegality of the breach, it means the cases when the breach is allowed or presumed, for example if the not realized contact is in the best interest of the child, either on the part of the child or parent. However it is up to the parent who is denying the access to prove that in the particular case there were circumstances that exclude the unjustified breach.[5]

            The parent whose personal rights were infringed is entitled in particular to demand that unlawful violation of his or her personhood be abandoned, that consequences of this violation be removed and that an adequate satisfaction be given to him or her, mainly in form of apology. If this moral  satisfaction appears insufficient due to the fact that the individual’s dignity or honour has been considerably reduced, the individual shall also have a right to a pecuniary satisfaction of the immaterial detriment. The amount of the satisfaction shall be specified by the court with regard to the intensity and circumstances of the arisen infringement to be a mean to adequate satisfaction that is also effective.[6] This form of satisfaction aims to reduce and compensate the impact of the harm.[7]  The intensity, nature and manner, the character, scope and duration of the infringement has to be taken into consideration. The bad faith of the infringer is an important element for the aggravated damages in sense of the satisfaction function of the damages, that means the stronger the bad faith his the higher damages has to be to compensate the injured person. In case of the bad faith the court has to express the criticism of this behaviour that is contra legem, against social and moral rules by means of the considerable amount of the pecuniary satisfaction.[8]

The parent who injures the constitutionally guaranteed rights of the other parent or the other constitutionally or by act protected values of the personal interests, has to be aware of being liable for these consequences. The long-term denied access or repeatedly denied contact causes considerable emotional harm. The court (judge) has a discretion in respect of the granted amount of the satisfaction, it has to take the concrete situation and the situation of the harmed person into consideration.[9] The court has to consider also the aim and function of pecuniary satisfaction in personal rights cases. Apart from the compensatory function, significant is its prevention function.[10] In case of the aggravated damages the bad faith has to be reflected and despite the delict law (civil tort law) precludes the use of the punitive damages, such an aggravated damages might be regarded as a sanction for the violation. The  pecuniary satisfaction is desirable as it could serve as an effective tool when the rights are repeatedly, intentionally violated or when there was such a flagrant violation when the parent even did not reflect the court orders.

See the Template for the claim: https://czechfamilylaw.wordpress.com/templates/


[1] The Supreme Court decision No. 30 Cdo 2591/2011 from 10. 1. 2013.

[2] ŠVESTKA, Jiří. SPÁČIL, Jiří. ŠKÁROVÁ, Marta. HULMÁK, Milan a kol. Občanský zákoník I, II. 2. Edition, Prague: C.H.BECK, 2009, p. 186.

[3] The Supreme Court decision No. 30 Cdo 4431/2007 from 7. 10. 2009.

[4] Subjective element of the faith has an impact only on the amount of the granted damages.

[5] Compare: The Supreme Court decision No. 20 Cdo 4498/2009 from 21. 2. 2011 „ One of the objective circumstances that hinder the contact between the child and parent is the illness of the child, however the state of the child and the ability to take care of the other parent has to be taken into consideration.“

[6] The Supreme Court decision No. 30 Cdo 4431/2007 from 7. 10. 2009.

[7] ŠVESTKA, Jiří. SPÁČIL, Jiří. ŠKÁROVÁ, Marta. HULMÁK, Milan a kol. Občanský zákoník I, II. 2. Edition, Prague: C.H.BECK, 2009, p. 198.

[8] The Czech Constitutional Court finding No. I. ÚS 1586/2009 ze dne 6.3.2012.

[9] The Supreme Court decision No. 30 Cdo 1084/2010 from 31.1.2012, similarly 30 Cdo 1578/2009 from 4.11.2009.

[10] The Czech Constitutional Court finding No. I. ÚS 1586/2009 ze dne 6.3.2012.

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