DEFENCE
Preliminary measure – XXX
And. Defect in the service of the decision. Documents issued by the Czech judicial authorities may be delivered abroad delivered exclusively in accordance with the Hague convention of June 22, 1982 of the Convention on the service of judicial and extrajudicial documents abroad in civil and commercial matters, namely, in accordance with article No. XX of the Convention. None of these modalities can be related to a direct service to the party in court through a foreign court as acting without compliance with procedures envisaged by the Hague Convention, moreover, when making decisions in a different legal case.

Express legal and court translation – in Prague

In conflict with the provision of § 76c, article 2 of CCO (Civil Court Order), the mother has not at all received a petition for preliminary measure, although the court was bound thereby, instead of reducing her rights to defend herself against the ordered preliminary measure.

Violation of this statutory command by court is all the more serious, that from the contested decision is not apparent, on what claims of the father the court was based in ordering the preliminary measure (with the exception, that he did not know about the departure of the mother from the Czech Republic, and that he wants to associate with a minor) and therefore against what claims the mother has to defend herself. Thus the court, although knowing from the father’s petition that the mother is abroad and will not have the opportunity to get acquainted with the father’s petition directly to the court, has consciously restricted the mother’s right to defense and to the expression of will in the matter. Doing so, the court violated the mother’s right to a fair trial.

Quick legal and court translation – in Prague 1

The mother is served with the decision drawn up in the English language as well, while the decision in the Czech language and the decision in the English language are not connected.
It does not arise from any of transmitted documents, on the basis of what facts and by whom had been elaborated the decision in the English language. In each case, this is not the translation by a court interpreter of the decision as issued by a court in the Czech language, since the English decision does not contain any interpretation clause. The judge, who had the decision to issue, while not well enough proficient in English, as evidenced by the fact that her affairs with a foreign element are work-scheduled by the court to another judge.

Legal and court translation – Prague 1 and Prague 2

The objection of the local jurisdiction incompetence of the District court for Prague 1.
As for the decision in the matter of caring for the minor, within the meaning of provision under the § 453 asp, the locally competent is the court of general jurisdiction of the minor child and if not known, the court, in which district the minor resides at the time of petition delivery, will proceed thereto.
In the matter of preliminary measure, within the meaning of the provisions under the § 74, article 3 of c.c. p., the appropriate (materially and locally) is the court which is competent for proceedings on the merits.

Legal / certified translations: czech

What court is the court of general jurisdiction of the minor child is defined by the Act of the Special Proceedings in the provisions under the § 4, article 2, according to which the general court of the minor participant who is not fully sui juris is the court in whose jurisdiction the minor has his residence.

The question of local jurisdiction is examined, in the meaning of the provisions under the § 105 of the c.p.s., ex officio, by the court till the end of the preparatory session, and in absence of the latter, – till the time the court starts the procedure in the matter, i.e. up to the time of the decision, if in deciding in the matter without a hearing.

Legal and court translation – Prague

It is evident from the above mentioned that when regulating the matters of care for minors, the court must examine its local jurisdiction even before the release of the preliminary measure. In the case of preliminary measure being issued in proceedings so far without any ordered preparatory hearing or the first hearing on the merits, the court proceeds on the basis of the allegations contained in the application for a preliminary measure. From the petition as submitted to the court must result the facts allowing the determination of the local jurisdiction competence of the court that has to decide about the petition, otherwise the court rejects the petition without further consideration.

Prague 1: Legal and court translation

Even if the mother does not have available a petition for initiation of proceedings and issuance of preliminary measure, namely and exclusively on the court-related grounds, it is apparent already from the contested decision that the court has simply omitted the question on whether it is locally competent in the matter of territorial jurisdiction. Those court-operated in the decision are three different addresses, without any evident relationship of the mother or the minor to any of the addresses. Even with regard to the fact that the address is located in the circuit of the various courts, it was up to the court to question its territorial jurisdiction and answer thereon in the decision.

In the heading of the decision the court states that the minor resides at the address Prague XXX and mother of the minor resides at the address XXX. How an infant can at age of 9 months stay at a different address than his mother is not obviously clear to the mother, and the court has evidently remained untouched with.

Legal and court translation – Prague

In the operative part of the decision is then stated the place designated for handing over a minor between the parents, namely, in the apartment at Prague 1, Maltézské nám. 15. What is the relationship of the participants to the above address also remains without the scope of decision. It is also not clear why this address is different from the alleged residence of the minor.

At the time of filing of the decision, but even at the time from birth of the minor or at the time of her pregnancy, the mother never lived at any of these addresses with the intent of staying on them permanently. The mother is a resident of the US, where she pays taxes, her health and social insurance. The mother stayed in the Czech Republic only temporarily.

Legal and court translation – Prague

Referred to in the decision is her address at Prague 2, XXX, but the mother never lived at this address. The address XXX is the address of the house where the grandmother of the minor used to be during her stays in the Czech Republic, and the address Prague 1, XXX. is the address at which is located an apartment owned and used by the grandmother of the minor.

The mother of a minor does not have any legal relationship to any of the subject real estates or any consent of her mother (grandmother of the minor) with the use of some of these real estates otherwise than for short visits.

When staying in Prague exclusively for visits, the mother of the minor used the apartment at XX. The second place where the mother with the minor used to stay on her visits of Prague was the house of her grandparents, the spouses XXX. In their house she remained part of her time spent in Prague, because her grandmother was helping her with the care of the minor. However, even in their house she was exclusively on her visit.

Legal and court translation – Prague

The third place where the mother temporarily resided with the minor was a holiday cottage in XXX for the purpose of temporary stays of the mother and her family, her mother, brother and grandparents in the territory of the Czech Republic.

The mother never spent most of the time at any of the above mentioned addresses, and one can say about the apartment on the Maltese square that this is where she used to stay even the least.

The mother never ceased to be a resident of the USA, and she has never moved to the Czech Republic for the purpose of permanent housing. This is why she didn’t even have any place in the Czech Republic Republic where to be intended to live permanently. The mother presents also a list of places of her stay beginning with the birth of the minor, from which it follows that the mother alternated her places of residence every few days, which had been, inter alia, bound precisely on the fact that the mother never had any permanent residence in the Czech Republic that her mother and grandmother (grandmother and great-grandmother of the minor) provided assistance in the care of the minor.

Legal and court translation – Prague

As of the decision date, the minor was 9 months old, being still a breastfed baby. In this situation, one cannot consider that the minor had a different residence than his mother in caring for and breastfeeding him every day. If the mother does not have the place on the territory of the Czech Republic where she intended to stay permanently, the minor does not have it as well.

In this situation, if the minor does not have his general court on the territory of the Czech Republic, the local court jurisdiction competence in the Czech Republic cannot be given on the basis of the residence of the minor.

The local jurisdiction competence could exceptionally be established in accordance with the provisions of § 467, article 2 of a.s.p., if there was danger in delay, when the district court could intervene where the minor resided. The mother is convinced that there was not any danger of delay for as much as the minor has never been placed in a state of lack of proper care; the minor has never been in any situation able to endanger his normal development or life. Even if the court considered the situation of the minor differently, the local jurisdiction competence of the District court for Prague 1 were not given, for as much as the minor was not located in his district at the time the injunction (preliminary measure) was issued. The minor missed in his district even at the time of petition submission by his father, even at the time immediately preceding the petition submission by his father.

Legal and court translation – Prague

The minor was the last time in the circuit of the District court for Prague 1 in March / April 2016 to visit his grandmother in a range of about three days. Therefore, the local jurisdiction competence of District Court with Prague 1 was not based on the above-quoted statutory provision.

It follows from the above mentioned that the minor has not his general jurisdiction court on the territory of the Czech Republic, under which could be established the local jurisdiction competence, and the local jurisdiction competence cannot be determined on the basis of other facts. This is why the District court for Prague 1 is not locally jurisdiction competent.

Consequently, by deciding in the present case, the court being locally jurisdiction incompetent for the decision issuance thus violated constitutional rights of the minor and his mother to their lawful judge, as has been repeatedly judicated by both the Supreme Court of the Czech Republic and the Constitutional Court (e.g., 23 Cdo 937/2009, I. ÚS 1171/14).

Legal and court translation – Prague

In a situation where at the submission time, the minor has already and provably been located outside the territory of the Czech Republic and the father knew it, there was no reason for the interim adjustment of rights to a minor, for as much as the court and the father must have been aware of apparent unenforceability of such a decision. Also from the efforts of the father to legalize unenforceable decision of the court in the USA outflows the desire of the father to circumvent the Hague Convention on international aspects of child abduction, and deprive the mother of the real possibilities of how to defend herself against this father’s pursuit and prove the existence of an agreement between parents about the place of residence of the minor.

Even the above-described elaboration of the contested decision of the court in English, in a situation where proceedings are held before the Czech Court and the judge is not the sworn translator into the English language, and legal affairs with a foreign element are removed from her work schedule, is more than the non-standard and indicative of at least a non-standard custom activity to the court.

Striking is even the scope of contact such as modified by the court in the contested preliminary measure.

In the time of the decision the minor was nine months old being a breastfed baby with a fixed daily regime, when during the day still at least once sleeping in the range of 2-3 hours. In the undeniable interest of the minor in this age is adherence to both the daily rhythm and the stability of the environment within which the baby moves, given that in such small children, what is understood under stability is not the place, but the person providing the child all-day care and to which the child is bound.

Legal and court translation – Prague?  – contact us HERE.

Zařazeno do témat: soudní ověření