1995/03/28 - Pl. ÚS 20/94: Family Law

28 March 1995

HEADNOTES

The 

Charter  of  Fundamental Rights and  Basic  Freedoms, which  forms  a 

part   of   the constitutional order of the Czech Republic, stipulates

in Article 32 para.  4  of the  Charter4) that parental rights may be 

limited and minor children may be removed from their parents' custody

against the latters' will only by the decision of a court on the basis

of the law.

If, therefore, other legal regulations place upon

the administrative organs the authority to carry out such measures,

which can be otherwise decided only by the court on the basis of the 

law, or which may stipulate that the court decides on such measures

subsequently, these provisions are in conflict with the constitutional

acts.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The  Plenum of the Constitutional Court of the Czech Republic in  the

matter of the petition proposing the annulment of § 46 of the Act on the

Family, No. 94/1963 Coll., as amended,1) § 19 para. 1, letter  a,

subpara. 1 of Czech National Council Act No.  114/1988 Coll.,  on the

Competence of Bodies of the Czech Socialist Republic in Social Security

Matters, as amended,2) and § 15 of Regulation of the  Ministry of Labor

and Social Affairs of the Czech  Republic, No. 182/1991 Coll., which

Implements the Act on Social Security and the Czech National Council Act

on the Competence of Bodies of the Czech  Socialist Republic in Social

Security Matters,3) on 28 March 1995 decided, thusly:   As of 1 October

1995, the following shall be annulled:


1.  § 46 of the Act on the Family, No. 94/1963 Coll., as amended;1)
2. 

§  19 para. 1, letter a, subpara. 1 of Czech National Council Act  No. 

114/1988 Coll., on the Competence of Bodies of the  Czech Socialist

Republic in Social Security Matters, as amended;2)
3.  

§  15  of  Regulation of the Ministry of  Labor  and  Social Affairs of

the Czech Republic, No. 182/1991 Coll., which Implements the Act on

Social Security and the Czech National Council Act  on
the  Competence  of  Bodies of the Czech  Socialist  Republic  in Social Security Matters; as amended.
3)

 


REASONING
 


On  16  February 1994, the complainant, Z. N., delivered  to the 

Constitutional Court of the Czech Republic a  constitutional complaint

against the 29 November 1993 resolution of the Regional Court  in  Brno,

which turned down his appeal from the  2  August 1993 judgment of the

Municipal Court in Brno, in conjunction with which  he  submitted a

petition proposing the  annulment  of  the above-cited  legal 

enactments.   For  this  reason,  the   Panel suspended  the  proceeding

on the constitutional  complaint  and, pursuant  to  §  78  para.  1 of

Act No.  182/1993  Coll.,  on  the Constitutional  Court, submitted to

the Plenum for  its  decision  the  petition proposing that the

provisions of both statutes  and of the implementing regulation be

annulled.

In  presenting his reasons for the petition, the

complainant stated  that, on the basis of a decision on provisional 

measures which  the  Municipal  Office of the City  of  Brno  - 

Cernovice District  issued  in 1991, a decision was taken placing  his 

son under institutional care.  The complainant appealed against these

provisional  measures  to  the  competent  appellate  body,   the

Municipal Office of the City of Brno, Division of Social Affairs, but 

that  office  did  not grant his appeal.   Neither  did  the criminal  

court  (which  in  1993,  in  connection  with   these decisions, 

passed  judgment  on  the  complainant's  failure  to perform his duty

as a father to pay fees for care provided during the  period  when  his

son was in institutional care)  take  into consideration  the

complainant's objection that  these  decisions constituted  a violation

of his rights as well as  those  of  his child, and this in spite of the

fact that Art. 32 para. 4 of  the Charter  of  Fundamental Rights and

Basic Freedoms4) provides  that parental  rights may be restricted and

children  may  be  removed from  the  custody of their parents without

the parents'  consent only  by decision of a court on the basis of a

statute.   Art.  9 para.  1  of  the Convention on the Rights of the

Child  contains analogous  provisions.  In the complainant's view,  at 

the  time these decisions were made, the cited provisions of the

Convention should  have  been given, in accordance with § 2 of the 

then  in force Constitutional Act No. 23/1991 Coll.,5) priority over

statutes; therefore, they should have taken priority over § 46 of  the 

Act on  the Family,1) No. 94/1963 Coll., § 19 para. 1, letter a,

subpara. 1  of  Czech National Council Act No. 114/1988 Coll.,2) and § 

15  of Regulation  of  the Ministry of Labor and Social Affairs  of  the

Czech  Republic,  No.  182/1991 Coll.3)   Nations  which  are  States

Parties to the above-cited Convention are, therefore, required to

ensure  that children may not be taken from the custody of  their

parents  without  the  parents'  consent,  unless  the  competent

authority  decides,  on  the  basis  of  a  court  decision,   in

accordance   with  a  valid  statute,  and  in   an   appropriate

proceeding, that such removal is in the interests of the child.

The  Constitutional Court has ascertained from the reasoning of  the 

judgment of the Municipal Court in Brno in the  criminal matter, file

no. 4 T 113/93, that even though the Municipal Court
in Brno did not

take such measures with explicit reference to the provisions of §  46 

of  Act No. 94/1963 Coll.,1) in its legal deliberations,  with regard to

the judgment on the complainant's guilt, in particular, it  conducted 

the case in accordance with the contents  of  that act.  The

Constitutional Court drew from these circumstances  the conclusion that

the petition proposing the annulment of a portion of  Act No. 94/1963

Coll., as amended, as well as portions of Czech National  Council  Act

No. 114/1988 Coll., and  Regulation  of  the Ministry  of  Labor and

Social Affairs No. 182/1991 Coll.,  bear  a close  connection  to  the

circumstances  that  emerge  from  the complainant's  constitutional

complaint.  Therefore,  the  formal requirements for the consideration

of a petition on the annulment of a statute (§ 74 of Act No. 182/1993

Coll.6)) have been fulfilled.

First of all, the Constitutional

Court must, on the basis of the submitted petition, draw its attention

to comparing the terms of  the provisions which are proposed to be

annulled, § 46 of Act No.  94/1963  Coll.1) (since its provisions create

the foundation  on which  is  built  §  19 of Act No. 114/1988 

Coll.,2)  and  §  15  of Regulation No. 182/1991 Coll.3)), with the

terms of Article 32  para. 4  of  the  Charter  of  Fundamental Rights

and  Basic  Freedoms.4) According  to  the  express terms of the

Charter  of  Fundamental Rights   and   Basic  Freedoms,  which  forms 

a  part   of   the constitutional order of the Czech Republic, in cases 

where  they do  not give their consent, parents' rights may be

restricted and
children may be removed from their custody only by

decision of  a court (on the basis of law).  The text of Article 32

para.  4  of the  Charter4) leaves no doubt on this score:  "Parental

rights may be  limited and minor children may be removed from their

parents' custody against the latters' will only by the decision of a

court on the basis of the law."  The Convention on the Rights of Child,

which  this  state  is  obliged  to  implement  internally,  also

provides similar protection to children.

If, therefore, the

Charter provides that minor children  may be removed from the custody of

their parents without the latters' consent only by the decision of a

court on the basis of the  law, and  the  provisions of the Act on the

Family(§  46  of  Act  No. 94/1963 Coll.1)), just as the provisions the

Act on the Competence of Bodies of the Czech Socialist Republic in

Social Security Matters (§  19  of  Act  No.  114/1988 Coll.2)), place

upon district  national committees (now district offices) the duty, in

urgent  cases,  to take  provisionally even such measures as otherwise

only a  court would  have  the  authority to take (although  they  are 

obliged without delay to notify a court, which must decide on the 

matter
subsequently),  then the Constitutional Court must  come  to 

the conclusion   that   these  provisions  are   in   conflict   with

constitutional acts, as meant by § 70 of Act No. 182/1993 Coll., on the

Constitutional Court, and must annul them.

The Constitutional

Court concurs with the views submitted by the  Assembly of Deputies' to

the effect that, if a child is  not receiving upbringing in his own

family situation, then he  has  a legal  claim  upon the state that it

ensure him upbringing  in  a situation substituting for that of his own

family, thus, even  an institutional  upbringing, if it is not possible

to  provide  him with substitute family care (§ 46, Act on the

Family1)), so that it is  not  only  the right of these bodies to take

those  necessary measures  which  are required by the interest in 

protecting  the rights of the minor, but it is also their legal duty.

 However, 

the  Constitutional Court cannot  agree  with  the assertion  that  the

breadth of the state bodies'  authority  and their  powers (for

example, in § 46 of Act No. 94/1963 Coll.1) )  are in  conformity  with 

the relevant norms  of  international  law, because,  as it has already

stated, it has come to the conclusion that   these   specific 

provisions  are  in  conflict   with   a constitutional  act  of  the

Czech Republic.   For  this  reason, neither  can  it  concur with the

further assertion  that  it  is enough  that  a  court makes a decision

concerning the  immediate placement  of children into care substituting

for the  upbringing of  the  family only subsequent to the decision by

the  competent administrative  body to make such a placement  as  a 

provisional measure.

 The  above-stated reasons, which point to

the  annulment  of the  contested provisions of both cited statutes,

applies to  the same   degree  to  the  annulment  of  the  provisions  

of   the implementing  regulations, that is §  15  of  Regulation  of 

the Ministry  of Labor and Social Affairs of the Czech Republic,  No.

182/1991 Coll.3)

 As  the  Constitutional Court is well aware 

that  there  are urgent  cases which require that, in the interests of

the  child, the  necessary steps be taken without delay, it is 

delaying  the entry into effect of this judgment until 1 October 1995,

in order to  allow  for the organizational, or legislative, measures 

that are  necessary to protect the interests of children, to be  taken

in  harmony  with  the Charter of Fundamental  Rights  and  Basic

Freedoms, which forms a part of the constitutional order  of  the Czech 

Republic, as well as with the International Convention  on the Rights

of the Child, by which the Czech Republic is bound.


 


Pl. US 20/94
Overview of the most important legal regulations

1.  

 § 46 of National Assembly Act no. 94/1963 Coll., on the Family,

provides that if it is urgently necessary, the national committee is

required to take such preliminary measures as can otherwise only be

decided only by a court, which it shall inform without delay; the court

shall make a supplementary decision.

2.    § 19 par. 1 letter a)

no. 1 of Czech National Council Act no. 114/1988 Coll., on the powers

of CSR bodies in social security, as amended, provides that the District

National Committee shall decide in urgent cases on the immediate

placement of a child in substitute care replacing the care of parents

for a period until the court makes a decision.

3.    § 15 of

Decree of the Ministry of Labor and Social Affairs of the CR no.

182/1991 Coll., which implements the Act on Social Security and Czech

National Act on the Powers of CR Bodies in Social Security, as amended,

provides that the District Office shall decide on the immediate

placement of a child in substitute care replacing the care of parents if

a child finds itself without any care whatsoever, e.g. as a result of

the death of parents or other persons responsible for the child’s

upbringing or as a result of other serious circumstances where a

long-term situation is anticipated. It shall also decide on the

immediate placement of the child if his life, health or beneficial

development are so serious endangered or infringed that regulating the

child’s situation cannot be delayed. The district office shall

immediately enforce the decision by taking the child out of the

environment in which it is found and shall inform the relevant court

without delay about the decision.

4.    Art. 32 par. 4 of Act no.

2/1993 Coll., the Charter of Fundamental Rights and Freedoms, provides

that it is the parents’ right to care for and raise their children;

children have the right to upbringing and care from their parents.

Parental rights may be limited and minor children may be removed from

their parents’ custody against the latter’s will only by the decision of

a court on the basis of the law.

5.    § 2 of the Federal

Assembly Constitutional Act no. 23/1991 Coll., which enacts the Charter

of Fundamental Rights and Freedoms, provides that international treaties

concerning human rights and fundamental freedoms which have been duly

ratified and promulgated and by which the Czech Republic is bound are

directly applicable and take precedence over statutes. Note: see Art. 10

of the Constitution

6.    § 74 of Act no. 182/1993 Coll., on the

Constitutional Court, provides that together with a constitutional

complaint a petition can be filed for the annulment of a statute or

other legal regulation or individual provisions thereof, by the

application of which the circumstance which is the subject of the

constitutional complaint arose.