2010/02/23 - III. ÚS 1206/09: Shared Custody

23 February 2010

HEADNOTES

The

entrusting a child to an upbringing solely with one of the parents must

not be an expression of a concession to the mutual rivalry of the

parents, this being focused solely on a “struggle over the child”, and

possibly mean motives on the part of one of the parents for harrowing

the other through their own child. The courts may and should utilise the

means provided to them by the Family Act [for example, the provisions

of § 43 paragraph 1, clause a), and § 44], by which they can admonish

one of the parents who, be it purposely or negligently, obstructs the

public interest in the proper upbringing and development of the

personality of the child (partially expressed, for example, in the

provisions of § 26 paragraph 3 of the Family Act).

When the

courts supported their decisions by the statements or disapproval of the

mother, and such disapproval was in fact the only obstacle to a verdict

on a shared upbringing for the minor (as an optimal option completely

satisfying the child’s interests, as declared by the expert), then the

courts must submit the same to examination and make it a subject of

evidence, this even without proposal to such effect. Disapproval of the

mother concerning shared custody may only be relevant when it is founded

on reasons which are capable of intense negative infringement of the

interests of the child.

The court does not need to examine such

evidence, when disapproval of the parent is merely based on clearly

irrational or non-reviewable reasons. If such irrational or

non-reviewable reasons are concerned, or if it is proven within the

proceedings that such disapproval is based on reasons which provably do

not have any negative impact on the interests of the child, courts

cannot found a decision, through which they do not grant the petition

for entrusting the child to shared (common) custody, on such a

disapproval.

The point is that any opposite course of action is

in conflict with the fundamental right of the other parent to a fair

trial pursuant to Article 36 of the Charter, and also an infringement of

their fundamental right to raise and care for their child according to

Article 32 paragraph 4 of the Charter, but also of the fundamental right

of the child to an upbringing and care from their parents pursuant to

the same article of the Charter.


CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE REPUBLIC


Without

an oral hearing and in the absence of the parties, a Panel of the

Constitutional Court, consisting of Chairman Vladimír Kůrka, Justice

Jiří Mucha and Justice Rapporteur Pavel Rychetský, adjudicated the

matter of a constitutional complaint filed by M. Š., legally represented

by JUDr. Lenka Faltýnová, an attorney at law with a registered office

at Nám. Míru 143, 344 01 Domažlice, against a judgment of the Regional

Court in Pilsen, ref. No. 10 Co 63/2009-173, dated 2 March 2009, whereby

a judgment of the District Court in Domažlice, ref. No. 13 Nc

287/2008-128, dated 8 December 2008, was partly confirmed and partly

altered; with the participation of the Regional Court in Pilsen as a

party to the proceedings, and R. Š. S., legally represented by Mgr.

Julie Filipová, an attorney at law with a registered office at Nádražní

73, 346 01 Horšovský Týn, minor Jana Š. (not the child’s real name),

legally represented by a guardian, the Municipal Office in Domažlice,

the department of social and legal protection of children, with a

registered office at U Nemocnice 579, 344 01 Domažlice, as secondary

parties to the proceedings, as follows:
 

I.

Verdicts I and II of the judgment of the Regional Court in Pilsen, ref.

No. 10 Co 63/2009-173, dated 2 March 2009, shall be annulled.
 

II. The remaining parts of the constitutional complaint shall be dismissed.


 


REASONING


I.

 

1.

A constitutional complaint against the decision specified above was

delivered, through a petition received on 11 May 2009 in electronic form

(via fax machine) and later as a filing in printed form of the same

wording via the operator of postal services, to the Constitutional Court

within the deadline prescribed by the provisions of § 72 paragraph 3 of

Act No. 182/1993 Coll. on the Constitutional Court, as amended by later

regulations (hereinafter referred to only as the “Act on the

Constitutional Court”), complying with the formal requirements

[provisions of § 30 paragraph 1, § 34, § 72 paragraph 1, clause a),

paragraph 3, paragraph 6, § 75 paragraph 1 of the Act on the

Constitutional Court].
 
2. In this constitutional complaint, the

complainant (the father) contested the above-specified decision,

objecting that in spite of the fact that both parents possess

commendable parenting skills for the child’s upbringing and acceptable

conditions for a shared upbringing, the court of justice entrusted the

minor to an upbringing by the mother; that the court has not justified

its decision properly; that the court proceeded from documentary

evidence (a report by PhDr. A. H.) the origination of which was

initiated solely by the mother and the complainant was not provided with

an opportunity to question the author of this evidence; that the

complainant’s proposed evidence was not accepted by the court; and

eventually that the court did not take into consideration the

conclusions of expert opinion which recommended shared custody as the

optimum option, and did not examine in detail the “ill-motivated and

obstinate” disapproval of the mother of shared custody, when the court

proceeded only from the general rule that “from childbirth, the fixation

of the child to the woman-mother is more natural, which gives no chance

to fathers to take care in person of their children”; thereby, the

father’s fundamental rights and freedoms under Article 2 paragraph 2,

Article 3 paragraph 1, Article 4 paragraph 3, Article 32 paragraph 4,

and Article 36 paragraph 1 of the Charter of Fundamental Rights and

Basic Freedoms (hereinafter referred to only as the “Charter”), and

Article 90 of the Constitution, as well as Article 18 paragraph 1 of the

Convention on the Rights of the Child, and Article 6 of the Convention

on the Protection of Human Rights and Fundamental Freedoms, were

allegedly infringed.
 


II.


3.

The Constitutional Court has requested the relevant file from which it

is evident that on 30 May 2008, the mother proposed that a preliminary

injunction be issued, on the basis of which she required that the minor

be entrusted to an upbringing by her for the period of time after the

divorce, and she left the shared household. The court has not granted

her petition. Within the proceedings ordered to be held before a court

of first instance on the merits of the case [on the regulation of

conditions (upbringing and maintenance) towards the minor for the period

of time after the divorce] it was revealed that the father requested a

shared upbringing, while the mother requested that the minor be

entrusted to an upbringing solely by her, when the conditions of

visitations of the father with the minor would be determined. She

expressed disapproval of shared custody in the following words (page No.

16): “… I cannot imagine, after the time I spent with my daughter on

maternity leave, that I would not see her for a whole seven days. Nobody

can imagine how I feel when I am waiting for my daughter to come back. I

just keep looking and waiting to see the car. To me it seems such a

very long period of time. As for the father. If he feels it the same

way, well I don’t know, I cannot tell what his feelings are.” The

father, in line with the statement by the mother specified in the

petition for the issue of the preliminary injunction, declared that the

present crisis was caused by ownership of two houses, when each spouse

owns a house and they are not able to agree as to which they will live

in together. The mother has not even accepted the suggestion of the

father that they would sell both houses and build another (a third one).

The father confirmed that lack of agreement on this issue resulted in

the cooling of emotions in the relationship; however, he did not want

the situation to be solved through divorce. The father requested that

the minor be entrusted to a shared upbringing or, in eventum, to an

upbringing solely by him, in which case the visitations of the mother

and the minor would be determined to the same scope as was proposed by

the mother with respect to himself.
 
4. The court sought out

expert opinion in the field of psychology; from this it was evident that

both parents have a sound and positive relationship with the child.

Both the father and mother grew up in environments similar in terms of

upbringing, and analogous personality traits were found to dominate

their personality profiles; the preconditions of the personality and

intellectual abilities of both parents provide them both with very good

preconditions for bringing up the child, literally they “favour shared

custody for the minor”. The minor is richly emotionally stimulated by

both parents and has a deep emotional bond to them. Currently,

application of shared custody is hindered by the disapproval of the

mother and the early age of the child. Shared custody, according to said

expert opinion, seems to be the optimal solution from the time the

minor starts attending nursery school.

5. In the course of the

proceedings, the mother, without the foreknowledge and presence of the

father, took the minor for a psychological examination, upon which PhDr.

A. H. developed a report in which she, among other points, recorded a

statement of the mother and, without providing closer details, declared

that “… yet it is the mother to whom Jana (not her real name) is more

emotionally bound, who gives Jana a feeling of safety and certainty, who

takes care of her very well and to a high standard”, and recommended

“frequent but only brief visitations for the child with her father,

without staying overnight, until the situation is adapted and child

stabilised.” The father protested against this course of action and

these conclusions, and asked that, should it be necessary, expert

opinion be developed on which the parties could comment and possibly ask

questions of the expert.
 
6. The court of first instance,

through judgment ref. No. 13 Nc 287/2008-128, dated 8 December 2008,

decided that the minor, for the period of time following the divorce,

should be entrusted to the mother’s upbringing, determined that the

father should be obliged to contribute to the maintenance of the minor,

and determined that the scope of time for visitations with the minor

should be from Wednesday 9:00 a.m. to Friday 4:00 p.m. during odd weeks,

and from Friday 4:00 p.m. to Sunday 4:00 p.m. during even weeks. The

court, in a detailed reasoning, accentuated the necessity of substantial

visitations for the minor with her father, and, therefore, extended the

recommendations of the expert concerning contacts between the father

and the minor. At the same time the court stated that the relationship

between the parents was strained, and they were not able to come to an

agreement concerning the regulation of the child’s upbringing,

maintenance or the parenting schedule.
 
7. The mother filed an

appeal against the judgment, in which she disputed the scope of

visitations between the father and the minor, and the verdict whereby

the amount of alimony was determined. Furthermore, she reproached the

court that the same had not dealt well with the report by PhDr. A. H.,

since “… it is apparent that the court did not take this report into

account in any way …”, and, in addition to an increase in alimony, she

proposed that the court determine a more limited parenting schedule for

the father, i.e. only each even week from Friday 4:00 p.m. to Sunday

4:00 p.m.
 
8. Also the father appealed against the judgment and

claimed that the court should have dealt more with the attitude of the

mother, and should not have dismissed the proposal for the development

of expert opinion. In conclusion the father proposed that the minor

should be entrusted to his care and, in connection with the same, that

other verdicts depending on this verdict should be altered, in concreto

that it be established that the mother is not obliged to contribute to

the maintenance of the minor, and that a parenting schedule be

established for her to the same scope as was determined for the father.
 
9.

During proceedings before the court of appeal, other documentary

evidence, in particular the report by PhDr. A. H., were presented by

reading the same. Furthermore, the mother denied what she had stated in

the petition for the issue of a preliminary injunction, i.e. that the

cause of marital discord was the lack of agreement on co-existence in

one of the houses built. As for the issue of shared custody, she

declared her conviction that the minor was not ready to be separated

from the mother. Furthermore, she stated that she had ceased to trust

her husband, she did not intend to change her standpoint applied in the

appeal, and that she would consider taking a co-operative approach

towards contacts between the father and the minor only within the

confines of recommendations by PhDr. A. H., i.e. “… the mother really

does not support a shared upbringing”.
 
10. The father declared

that he acknowledged the whole burdensome situation which they both, as

parents, caused to their child, and that he felt ashamed to some extent

for this; he still loved the mother, and he repeated that he was not

interested in getting divorced. At the same time he complained about the

situation of being de facto forced to submit himself to a schedule

which has been established by the mother, who thus has limited his

contact with the minor.
 
11. The court of appeal confirmed the

judgment in verdicts whereby the child is entrusted to the mother’s

upbringing and the scope of contact between the father and the child is

determined, and changed the verdict concerning the amount of alimony. In

the reasoning for the decision, the court summarised the facts of the

case ascertained, and emphasised that generally, from a developmental

point of view, with respect to the age of the child, fixation to the

mother is stronger; otherwise, the minor loves both parents, the

father’s environment is not unknown to the child as she lived there

until leaving the shared household; the court concluded that the

psychological condition of the minor, also according to the reports by

PhDr. A. H., has stabilised.
 
12. On 20 May 2009, the judgment of

the District Court in Domažlice, ref. No. 5 C 161/2008-17, dated 22

April 2009, became legally effective, whereby the marriage of the father

and mother was divorced and wherein, at the conclusion of the

reasoning, the court states: “The parties’ own child cannot save the

marriage without the mutual will of the parties, and that is why the

relationship of the parties must be seen as fractured and without a

future, since in this case, the desire of the respondent to preserve the

marriage clashes with a lack of will for the same by the petitioner.”
 
13.

In the conclusion of the file, a proposal by the father concerning the

determination of visitations with his minor daughter during the summer

holidays, Christmas and Easter holidays, and winter time is appended.
 


III.
 

14.

The Constitutional Court appointed a guardian for the minor and

requested the party to the proceedings and the secondary parties to the

proceedings to submit their opinions concerning the constitutional

complaint.
 
15. The Regional Court in Pilsen, in its filing dated

5 June 2009, referred to its decision and mentioned that “The interest

of the child, which is that both parents participate in her upbringing,

with respect to her emotional relationship with them and to the

parenting skills of the parents, was expressed through the scope of the

visitations determined for the father with the minor (4 days a week with

her mother, 3 days with her father).” The Court did not propose as to

how the constitutional complaint should be adjudicated, and approved of

dispensation of an oral hearing.
 
16. The secondary party, R. Š.

S., in her statement dated 3 December 2009, specified that she did not

align herself with the opinion of the complainant, since the court of

appeal had made its decision under a situation when “the facts of the

case were ascertained, and the parenting skills of both parents and,

mainly, the emotional relations of the minor to the complainant and

secondary party were clarified.” She repeated that she had not agreed

and did not agree with the minor being placed in shared custody, but in

this she was guided “solely and merely by the interests of the minor

(…)”, and expressed a belief that “(…) the minor would not handle

mentally the pattern of being raised through shared custody, and her

further development would be principally disturbed”. According to her

statement, shared custody “is preconditioned also by mutual

communication between the parents and the ability to find accord, which

is something the parents of the minor are not able to do, which is also

shown by the evidence presented.” The interest of the mother in the

healthy physical and mental development of the minor should not be held

against the mother, or taken as an infringement of the constitutionally

guaranteed fundamental rights and freedoms of the complainant or the

minor. She considered the parenting schedule as established to be so

extensive that it “provides the father with vast scope for contact with

the minor and, in particular, for participating in her upbringing.” In

her opinion, the complainant “does not intend to respect the rights of

the minor, in particular the right to healthy mental and physical

development, when he is not able to accept the psychological condition

of the minor as has existed for a considerable time, and her emotional

fixation to the mother”. In the conclusion, she proposed that the

Constitutional Court deliver a judgment whereby the Constitutional Court

would completely dismiss the constitutional complaint; she also

expressed her approval of dispensing with an oral hearing.
 
17.

The secondary party, minor Jana Š., through her guardian, the Municipal

Office in Domažlice, the department for social and legal protection of

children, in a filing dated 2 February 2010, pointed out that they were

not submitting any opinion concerning the constitutional complaint,

since “it is a procedural matter”. The statement of the guardian

consisted merely of a report on the circumstances in which it is stated

that both the father and mother had managed an improvement in mutual

communication, but their disagreement concerning shared custody still

lasted. Within the conclusion, approval of dispensing with an oral

hearing was granted.

18. The statements by the party to the

proceedings and the secondary parties to the proceedings were sent to

the complainant so he could reply. In his filing dated 15 February 2010

he repeated that he insisted on the constitutional complaint and

repeated the decisive circumstances specified already in the petition

for initiation of proceedings. He accentuated that both the court of

appeal and the expert agreed that a shared upbringing would be the most

suitable option for the minor, and yet this manner of upbringing was, in

relation to the father, only imperfectly replaced with the given scope

of contact with the minor. By this, parental rights are allegedly

inadmissibly restricted, because, as a result of the judicial decision,

the mother has the minor in her care, during a period of 14 days, for 10

days, while the father gets only 4 days and 7 hours. The complainant

concluded that, with respect to all the circumstances on the part of

both parents and their respective environments, a shared upbringing is

in the interest of the minor, when such a method of upbringing would

provide the child with a better share of paternal as well as maternal

love and establish a precondition for her balanced mental and physical

development. Approval of dispensation of an oral hearing was granted.
 


IV.


19.

Pursuant to Article 83 of the Constitution of the Czech Republic

(hereinafter referred to only as the “Constitution”), the Constitutional

Court is a judicial body for protection of constitutionality, and

exercises these powers, inter alia, by making decisions, pursuant to

Article 87 paragraph 1, clause d) of the Constitution, over

constitutional complaints against final decisions or other encroachments

by public authorities infringing constitutionally guaranteed

fundamental rights and basic freedoms [cf. also the provisions of § 72

paragraph 1, clause a) of the Act on the Constitutional Court]. The

Constitutional Court is not a part of the system of ordinary courts and

is not called upon to undertake appellate reviews of their decisions; if

a constitutional complaint is aimed against a decision of ordinary

courts, it is therefore in itself not important whether its substantive

erroneousness is claimed. The powers of the Constitutional Court are

given exclusively with respect to the review of decisions from the

viewpoint of compliance with principles of constitutional law; that is

whether the constitutionally guaranteed rights of the parties were not

aggrieved in proceedings (and subsequently by a decision issued in such

proceedings), whether proceedings were administered in line with these

principles, and whether such proceedings as a whole may be considered

fair.

20. When the complainant contested the verdicts of

judgments of the ordinary courts in relation to entrusting the minor to

an upbringing by the mother, the task of the Constitutional Court is

primarily to evaluate whether the ordinary courts through such decisions

violated any fundamental rights and basic freedoms of the complainant.

Such violation could occur in particular by the courts excessively

failing to respect the very provisions of a common enactment, in this

case in particular the provisions of § 26 paragraph 2 and § 50 paragraph

1 of Act No. 94/1963 Coll. on Family, as amended by later regulations.

Besides, as the Constitutional Court has adjudicated on several

occasions, it is, as a matter of principle, up to the ordinary court to

evaluate the conditions of entrusting a child to an upbringing by one or

the other parent. Therefore, in assessing the constitutional complaint

submitted, it is necessary to deal first with the issue whether the

ordinary courts, when deciding on the regulation of the exercise of

parental responsibility and determination of contact with the child,

respected the contents and meaning of the relevant statutory provisions.


 
21. It was unambiguously proven in proceedings before courts

that entrusting the child to shared custody is in the best interest of

the child and appears to be optimal for her; the obstacle was merely the

tender age of the child and disapproval of the mother. The obstacle of

such youth of the minor was to be removed at the time when the child

could start attending nursery school; prior to such time, the expert did

not recommend shared custody for the reason of the tender age of the

child. The obstacle of the child’s youth was therefore removed as soon

as she completed the third year of her life; that was at the time of

proceedings before the court of appeal.

22. The remaining and

thus final obstacle to a shared upbringing was the alleged disapproval

of the mother, which, however, was substantiated only sporadically, and

frequently represented solely the interests of the mother, not the

child. Yet, the courts inclined to the proposal of the mother and

entrusted the minor to an upbringing solely by her. As is inferred from

the reasoning, they did so because they did not find conditions suitable

for a shared upbringing.
 
23. Shared upbringing particularly

requires from the parents tolerance, shared will and the ability to

communicate and co-operate together (and especially not to involve the

child in their mutual problems). However, the court must not dismiss

this form of upbringing once one of the parents pro forma disagrees with

this manner of upbringing. If such disapproval is merely obstructive,

not substantiated by anything and lacking relevance in relation to the

upbringing of the child, the court may not justify its decision through

such disapproval. Therefore, in the Constitutional Court’s opinion, a

crucial issue has arisen in this case, that is, why the mother is not

willing to co-operate and communicate, and why she is lacking the

willingness and maturity to participate in the child’s upbringing with

the father, and to co-operate with him, in the best interest of their

young daughter.
 
24. The Constitutional Court emphasises that

entrusting a child to an upbringing solely with one of the parents must

not be an expression of a concession to the mutual rivalry of the

parents, this being focused solely on a “struggle over the child”, and

possibly mean motives on the part of one of the parents for harrowing

the other through their own child. The courts may and should utilise the

means provided to them by the Family Act [for example, the provisions

of § 43 paragraph 1, clause a), and § 44], by which they can admonish

one of the parents who, be it purposely or negligently, obstructs the

public interest in the proper upbringing and development of the

personality of the child (partially expressed, for example, in the

provisions of § 26 paragraph 3 of the Family Act).

25. The

Convention on the Rights of the Child, adopted on 20 November 1989 in

New York, promulgated through Notification by the Federal Ministry of

Foreign Affairs of the Czech and Slovak Federative Republic No. 104/1991

Coll., in Article 3 paragraph 1, determines that “In all actions

concerning children, whether undertaken by public or private social

welfare institutions, courts of law, administrative authorities or

legislative bodies, the best interests of the child shall be a primary

consideration.” Bodies of states are addressees also of Article 18

paragraph 1, which declares that “States Parties shall use their best

efforts to ensure recognition of the principle that both parents have

common responsibilities for the upbringing and development of the child.

Parents or, as the case may be, legal guardians, have the primary

responsibility for the upbringing and development of the child. The best

interests of the child will be their basic concern.”
 
26. Also

the Charter, in Article 32 paragraph 1, in connection with paragraph 4,

determines that parenthood and the family are under the protection of

the law, and it is the parents’ right to care for and raise their

children; children have the right to an 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.

27. The

provisions of § 26 paragraph 4 of the Family Act impose on the court

that the same, when making a decision on entrusting a child to an

upbringing by the child’s parents, pursues first of all the best

interest of the child with respect to their personality, in particular

their aptitudes, abilities and developmental possibilities, and with

respect to the living conditions of the parents. The court must see

there is respect for the right of the child to care by both parents, the

maintenance of regular personal contact with the parents and the right

of the other parent, to whom the child is not entrusted, to regular

information concerning the child. The court should also take into

account the emotional bonds and background of the child, and the

parenting skills and responsibilities of the parent, the stability of

the future environment for such an upbringing, the ability of the parent

to find agreement concerning the upbringing of the child with the other

parent, the emotional bonds of the child to their siblings,

grandparents and other relatives, as well as financial security from the

parent, including housing conditions.

28. As for compliance

with the Convention on the Rights of the Child, the above-quoted

provisions did not attract the proper attention of the courts. The

ordinary courts did not sufficiently focus on evidence, or allowed the

mere statement of the mother to influence the decision on the case’s

merits, without the reasons for such a statement being subjected to the

test of the capability to infringe the child’s interest, and, therefore,

the courts were not able to ascertain which of the parents facilitates

greater latitude for an upbringing by the other parent in the best

interest of the child (provided that both are interested in her

upbringing and are eligible for the same). Indubitably, the main

interest of the child is that the child is under the care of both

parents, and if this is not possible, then under the care of the parent

possessing better preconditions for the provision of such care, who,

inter alia, acknowledges the role and importance of the other parent in

the life of the child, and is also convinced that the other person is a

good parent too. In the case under consideration, the ordinary courts

did not pay sufficient attention to the statements of the mother and did

not ascertain reasons for which the mother of the minor is not willing

to co-operate with the father of the child in a shared upbringing, even

though he declared such willingness before the court of first instance

as well as the court of appeal.

29. When the courts supported

their decisions by the statements or disapproval of the mother, and such

disapproval was in fact the only obstacle to a verdict on a shared

upbringing for the minor (as an optimal option completely satisfying the

child’s interests, as declared by the expert), then the courts must

submit the same to examination and make it a subject of evidence, this

even without proposal to such effect. Disapproval of the mother

concerning shared custody may only be relevant when it is founded on

reasons which are capable of intense negative infringement of the

interests of the child. The court does not need to examine such

evidence, when disapproval of the parent is merely based on clearly

irrational or non-reviewable reasons. If such irrational or

non-reviewable reasons are concerned, or if it is proven within the

proceedings that such disapproval is based on reasons which provably do

not have any negative impact on the interests of the child, courts

cannot found a decision, through which they do not grant the petition

for entrusting the child to shared (common) custody, on such a

disapproval. The point is that any opposite course of action is in

conflict with the fundamental right of the other parent to a fair trial

pursuant to Article 36 of the Charter, and also an infringement of their

fundamental right to raise and care for their child according to

Article 32 paragraph 4 of the Charter, but also of the fundamental right

of the child to an upbringing and care from their parents pursuant to

the same article of the Charter.

30. Under this condition, when

the child was entrusted to an upbringing with the mother, it is

necessary to reproach, from the viewpoint of constitutional law, the

ordinary courts for the lapses specified above. The decision was not

supported by relevant factual findings on one hand and factual and legal

conclusions derived from the same on the other. However, with respect

to other points, it must be stated and highlighted that the courts very

accurately reflected the material circumstances which took place during

the judicial proceedings, and so made it possible for the Constitutional

Court to be able to create its own faithful and realistic portrait of

the conduct of both parents in this case.
 


V.
 

31.

Beyond rationis decidendi, as obiter dictum, in connection with

decision making on the case in question, the Constitutional Court refers

to the fact (similarly as at the time when the Supreme Administrative

Court, as foreseen by the Constitution, did not exist – see in

particular Judgments in cases file Nos. IV. ÚS 136/97, III. ÚS 142/98,

III. ÚS 206/98, III. ÚS 187/98) that the Constitutional Court is forced,

in cases under § 237 paragraph 2, clause b) of the Civil Procedure

Code, to undertake, in necessary cases, correction of legal opinions,

which would, however, otherwise pertain to the Supreme Court. The

present “system” of proceedings on an appeal on a point of law

acknowledges neither a means of correction of a judicial decision nor a

means of unifying case law on the issues in question other than a

constitutional complaint, which is undoubtedly an undesirable situation

and one which does not correspond to the principles of execution of

justice in a law-based state.
 
32. The Constitutional Court

states that the Regional Court in Pilsen has violated, pursuant to the

above-specified provisions of the Charter of Fundamental Rights and

Basic Freedoms, the Convention on the Protection of Human Rights and

Fundamental Freedoms, and the Convention on the Rights of the Child, the

fundamental right of the complainant to a fair trial and the right to

bring up and care for a child.
 
33. The Constitutional Court,

therefore, concludes that it grants the constitutional complaint,

pursuant to Article 87 paragraph 1, clause d) of the Constitution, this

for the reasons specified above, and therefore, according to the

provisions of § 82 paragraph 3, clause a) of the Act on the

Constitutional Court, decided by its Judgment in such a manner as

specified in the verdict.
    
Note: Appeal against a decision of the Constitutional Court is not admissible.