2010/07/08 - PL.ÚS 15/09: Paternity Contestation

08 July 2010

HEADNOTES

 

The

right to protection of private and family life pursuant to Article 10

Section 2 of the Charter and Article 8 of the Convention prevents the

public authorities from arbitrary interference with such an intimate

sphere of each and every individual as represented by relations between

parents and a child. Those relations amount to the most natural

expression of human identity and the right of a democratic and free

society must respect their existence. Neither the substance nor the

nature of family relations is primarily based on law; the law merely

awards protection to their real-life existence. Such protection cannot

be ensured solely by an obligation to adhere to certain principles on

the side of public authorities. The state is, at the same time, obliged

to enact legislation that will ensure legal recognition of family

relations and will determine the content of such relations both in

relations among the family members and relations towards third parties.
 
The

requirement of the agreement between the legally determined and the

biological parent cannot be held absolute. The legal relation of the

father and child does not amount to a mechanical reflection of the

existence of a biological relationship since in time even if such

biological relation is absent such a social and emotional tie can

develop between the legally determined father and the child that from

the point of view of the right to protection of private and family life

this relation will be within the ambit of legal protection. In such a

case further duration of legal relations will be dependent on more

factors among which the best interests of the child will have an

important role - pursuant to Article 3 para. 1 of the Convention on the

Rights of the Child such an interest has to be the primary concern in

decision-making activity of public authorities while, however, the child

has the right to know its parents conferred by Article 7 para. 1 of the

above Convention. However, the interest of the biological father who is

not awarded the status of legal father and is seeking such a status

cannot be denied as irrelevant nor can the interest of the legal father

who is not a biological father and is contesting his paternity be

dismissed. The right to the protection of private and family life of the

mother of the child must also be assessed.

 

The

assessment of the compliance of the Act or of another legal regulation

in proceedings pursuant to Section 64 and subs. of the Act No. 182/1993

Coll., on the Constitutional Court in its latest wording is not

reflected merely in sphere of the validity of the legal regulation but

also in the sphere of the applicability of the relevant regulation. The

Constitution itself does not restrict the protection of fundamental

rights and freedoms in the case when the grounds for their infringement

rest in the application of unconstitutional legal norm merely to the

annulment of such legal norm by the Constitutional Court but assumes

that the conclusions of the Constitutional Court will be reflected in

relation to the application of such norm by public authorities. The

potential consequence in the form of non-applicability of the Act

relates to the cases when the Constitutional Court notes collision of an

Act with constitutional order and the relevant derogatory reason

affects the legal status of an individual with respect to the

fundamental rights and freedoms. Establishing a later date for annulment

of the contested provision may not lead to the conclusion that the

ordinary courts are obliged to apply the concerned provisions in the

extent in which it is affected by the derogatory reason should as a

result of such application a possibility arise of interference with a

fundamental right or with freedom of a party to the proceedings.

 

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

 

IN THE NAME OF THE CZECH REPUBLIC

 

The

Constitutional Court Panel consisting of Pavel Rychetský, President of

the Court and of Justices František Duchoň, Vlasta Formánková, Vojen

Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká,

Jiří Mucha, Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová, and

Michaela Židlická ruled on the petition filed by Z. S. born on February

3, 1972, residing at No. 2896/37 Telečská street in Jihlava, represented

by Mr. Jan Valihrach, Mgr., an attorney at law, residing at No. 13

Žižkova street in Jihlava and on the Second Panel of the Constitutional

Court on annulment of Section 57 para. 1 of Act No. 94/1963 Coll., on

Family in the wording of its latest reading with the Chamber of Deputies

of the Parliament of the Czech Republic and the Senate of the

Parliament of the Czech Republic as parties to the proceedings as

follows:

Provisions of Section 57 para. 1 of Act No. 94/1963 Coll., on Family are deemed annulled as of December 31, 2011.

 

 

REASONING

 

I. Summary of the Petition

 

A. Circumstances Leading to the Submission of the Constitutional Complaint Recorded under file number II. ÚS 405/09

1.

In a timely and duly submitted constitutional complaint, recorded under

file number II. ÚS 405/09 the petitioner sought to have the judgment of

the Supreme Court of the Czech Republic dated December 17, 2008, file

number Cdo 1493/2008-69, the judgment of the Regional Court in Brno

dated October 11, 2007, file number 13 Co 375/2006-35, and the judgment

of the District Court in Jihlava dated August 2, 2006, file number 21 C

36/2006-14 quashed by the Constitutional Court of the Czech Republic on

the grounds of the alleged infringement of fundamental rights of the

petitioner conferred by Article 10 para. 2 and Article 11 para. 1 and 39

of the Charter of Fundamental Rights and Basic Freedoms (hereafter only

as “the Charter”) and by Articles 6, 8 and 13 of the Convention for the

Protection of Human Rights and Fundamental Freedoms (hereafter only

“the Convention”). The petitioner further sought to have Section 57

para. 1 of Act No. 94/1963 Coll., on Family, in the wording of its

latest reading annulled in part, namely the wording of “within six

months”.

 

2.

The petitioner in his constitutional complaint alleged that based on

the statutory marital presumption of paternity pursuant to Section 51

para. 1 of the Act on Family he was recorded as father of L. S., born on

February 5, 2004. However, in October 2004 the spouse of the petitioner

requested that he move out of the matrimonial home. The petitioner

maintains he failed to comprehend the request of his spouse due to

several facts including the recent birth of their son L. as well as due

to the plans of the married couple to build a residential home for the

use of the family. In November the petitioner found out that his spouse

had been involved in an extramarital affair with another man for the

period of at least two years. When the wife of the petitioner left the

matrimonial home in December 2004 while cleaning the wardrobe used by

both spouses the petitioner came by a negative of a camera film partly

containing family images and partly images related to the extramarital

affair of the petitioner’s spouse and her lover. The petitioner assumed a

suspicion that he was not the biological father of the child born in

February. The suspicion was further based on his absence from the

matrimonial home at the time of the conception due to a business trip.

The petitioner decided to undertake a DNA test with the accredited

company Generi Bioetch Ltd. The test confirmed that the petitioner was

not the biological father of L. S.
 
3. The petitioner also stated

in his petition that in the course of the divorce proceedings his

spouse proposed to resolve the paternity of the second child provided

the petitioner was prepared to accept a compromise regarding his legal

claim in the financial settlement of their marital property of spouses.

The (now former) wife of the petitioner in response to the

constitutional complaint stated the following: “It is true that in the

course of the financial settlement of our marital property I proposed to

the petitioner a complex solution when the issue of paternity would be

addressed while I requested that he refrain from his claim [against me]

for the market price of the residential flat the title to which had been

transferred onto me by my grandparents in the course of the marriage

free of charge. The obligation to pay the petitioner half of the market

price of the property represented a substantial financial advantage in

favour of the petitioner and thus he cannot claim nowadays that my

attitude was immoral. It was the petitioner himself who strictly

insisted on the financial settlement of the marital property and on

exercise of his rights and although that was in compliance with the

applicable law it definitely was not fair from the factual point of

view.” As mentioned above the petitioner rejected such “a complex

solution”. 

 

4.

Instead, on January 1, 2005 the petitioner filed an application with

the Supreme Public Prosecutor’s Office seeking judicial declaration

regarding the contested paternity pursuant to Section 62 of the Act on

Family. The Supreme Public Prosecutor’s Office dismissed the

application. In her response dated July 18, 2005 the public prosecutor

stated that such an application represents “an extraordinary measure”

while “the circumstances of a stabilized status of a child may only be

interfered with by the public prosecutor inter alia when the statutory

fact is satisfied that it is in the best interest of the child to allow

the paternity to be contested before court.” The public prosecutor

emphasized that such a measure would be possible “only in the event it

could be reliably established that the father recorded on the grounds of

statutory presumption of paternity had not conceived the child.” The

public prosecutor considered that such a circumstance failed to be

established. She stated that “proof could not be tested through expert

opinion in the course of inquiry into a submission” at the same time she

stated that a result of a DNA test conducted by a private company “did

not under any circumstances represent a proof the public prosecutor may

be able to rely on in her prospective inquiry.” As communicated by the

public prosecutor, the wife of the petitioner “when inquired by the

public prosecutor maintained that at the material time she was

intimately involved [solely with the petitioner] and that she contested

both her and her son L.’s prospective participation in expert testimony

procedure.” The petitioner received a similar response to his

application filed in September 2005 seeking a review of his original

application.

 

5.

On March 7, 2006 the action of the petitioner seeking judicial

declaration regarding the paternity of minor L. S. was submitted with

the District Court in Jihlava. The contested decision of the above court

dated August 2, 2006 dismisses the action on the grounds of vain

expiration of the statutory period of limitation pursuant to Section 5

para. 1 of the Act on Family. However, when deciding the question of

costs of proceedings renumeration the Court applied provisions of

Section 150 of the Civil Procedure Code and did not award the defendant

(the former spouse of the plaintiff) the costs of proceedings due to

grounds based on extraordinary circumstances. Such circumstances were

mainly seen by the District Court in the fact that based on an anonymous

expert report the petitioner was not the biological father of the child

and further in the fact that the former wife of the petitioner was

involved in an extramarital affair in the course of the marriage while

it was established as a fact in divorce proceedings. The decision was

affirmed on October 11, 2007 by the Regional Court in Brno in response

to the appeal submitted by the petitioner. The verdict on the costs of

the proceedings was, however, overturned by the Regional Court in Brno

imposing an obligation upon the petitioner to cover the costs of

proceedings incurred by his former wife since in the view of the

Regional Court the plaintiff must have been aware that his action could

not stand pursuant to applicable legislation. The Supreme Court

subsequently dismissed as inadmissible the appeal on the point of law

submitted by the petitioner in the contested decision dated December 17,

2008 since it did not recognize grounds for admissibility pursuant to

Section 237 para. 2 letter c) of the Civil Procedure Code.
 

B. Arguments of the Petitioner related to Unconstitutionality of Section 57 para. 1 of the Act on Family

6.

The petitioner assumed his fundamental right to the protection of

family life and private life pursuant to Article 10 para. 2 of the

Charter and Article 8 para. 2 of the Convention (points 7 to 9 below)

was breached by the courts that applied the contested provision of

Section 57 para. 1 of Act on Family. He simultaneously stated that the

application of provision of Section 57 para. 1 in connection with the

provision of Section 62 of Act on Family resulted in a breach of his

fundamental right to seek, via an established procedure, enforcement of

his right before an independent and impartial court pursuant to Article

36 para. 1 and 2 of the Charter and pursuant to Article 6 and 13 of the

Charter (point 11 below). Finally, the petitioner pointed out

interference with the fundamental right to own property (Article 11 of

the Charter, point 12). Apart from seeking to have the decisions of

ordinary courts set aside the petitioner proposed that the contested

provision be annulled by the Constitutional Court. To support his

petition the petitioner relied on the following arguments:

 

7.

Firstly, the petitioner assumes that the determination of the

commencement of the statutory period of limitation applicable to

submission of the application seeking to have judicial decision issued

regarding contested paternity based on the time when the presumed father

of the child finds out that the child was born shall not stand in the

light of the fundamental right to protection of family and private life

pursuant to Article 10 para. 2 of the Charter and Article 8 of the

Convention. With reference to the case law of the European Court of

Human Rights (hereafter only as “The European Court” or “ECHR”) namely

to the decision Kroon and others versus the Netherlands [the Judgment of

ECHR dated October 27, 1994, application No. 18535/91 [all of the

judgments referred to hereafter are available in HUDOC database at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/ ],

the petitioner assumes that Article 8 of the Convention guarantees to

have family relations that do not result from biological union set aside

(annulled) in order to enable the biological relations and social

reality to prevail  over legal presumptions and over the requirement of

legal certainty relationships and so that any presumption of paternity

may be efficiently contested. The petitioner referred to ECHR judgment

Shofman versus Russia [Chamber Judgment of ECHR dated 24 February, 2005,

application No.74826/01], where as assumed by the petitioner the

European Court ruled regarding subject matters and factual and legal

matters nearly identical to the ones of the petitioner. According to

this judgment it is contrary to the Convention to reject modification of

the status of a child determined on the grounds of presumption of

paternity due to a period of limitation restricting the submission of

action challenging paternity while the period of limitation is based on

the moment when the father determined by presumption found out about the

birth of the child. The European Court finds introduction of a period

of limitation within which paternity can be successfully contested

justifiable by pursuit of legal certainty in family relations and by

protection of the best interest of the child, however, merely in cases

when the petitioner established as a fact or had probable cause to

assume he was not the father of a minor child since the first day of the

child’s life and yet due to circumstances unrelated to law he failed to

take any action towards contesting paternity within the statutory

period of limitation (the petitioner refers to the ECHR Chamber judgment

on inadmissibility dated October 19, 1999. application no. 34308/96 and

ECHR Chamber  judgment dated November 28, 1984 in Rasmussen versus

Denmark, application no. 8777/79).

 

8.

The petitioner stated that the unsustainable nature of current

provisions is repeatedly addressed by the Constitutional Court itself.

The petitioner referred to the resolution   of the Constitutional Court

file no.  II. ÚS 289/07 dated April 4, 2007 and resolution file no. III.

ÚS 1506/07 dated January 17, 2008 (both texts as well as other

decisions of the Constitutional Court referred to are available in NALUS

database at http://nalus.usoud.cz ).

The petitioner further referred to the judgment of the Constitutional

Court file no. II. ÚS 568/06 dated February 20, 2007 (cf. N 33/44 Coll.

of Judgments 399), where the Constitutional Court referring to

professional literature sources stated that "the family is, in the first

place, a biological connection, and then a social institution, which is

only subsequently defined by a legal framework".

 

9.

The petitioner hereby stated that the statutory period of limitation

available to contest paternity does not in any manner enforce the trust

in personal relations since it creates pressure on the legitimate father

to find out his biological paternity in the course of the first six

months after the birth of the child. Legal framework must respect social

overlap of its relations towards a minor child. Family relations are of

crucial importance for the development of the child, its psychological

balanced development of the child’s personality and in establishing its

role within the society. In the case of the petitioner the absence of

such ties is obvious. Furthermore, his legal position represents an

imposition of a number of obligations upon him. Apart from the duty to

provide maintenance there is also the duty to bring the child up with

due care. Fulfilment of such duties requires time, emotional and

financial investment with no secure guarantee that the minor child

itself will not pursue modification of its family status in order to

absolve itself from potential obligation towards the petitioner. This

leads to an obvious disequilibrium between the obligations of the

petitioner and the anticipated obligations of the child.

 

10.

The petitioner assumes that the child itself is equally affected by the

circumstances in the instant case. The minor child has, pursuant to

Article 8 of the Convention, the right to establish a legal relation

with his genuine (biological) father (here the petitioner refers to ECHR

judgment dated February 7, 2002, Mikulić versus Croatia, application

no.  53176/99) and the child has right to know its parents as conferred

by Article 7 of the Convention on the Rights of the Child (declared

under No. 104/1991 Coll.).

 

11.

Secondly, the petitioner adds that application of provisions of Section

57 para. 1 in connection with Section 62 of the Act on Family

represents a breach of the fundamental right to assert his rights

through a legally prescribed procedure before an independent and

impartial court pursuant to Article 36 section 1 and 2 of the Charter

and to Article 6 and 13 of the Convention. Current legislation does not

allow for contesting paternity after expiration of the statutory period

of limitation. Although the Act on Family allows the father to file a

submission with the Supreme Public Prosecutor’s Office seeking to have

an application filed to contest paternity, there are no effective

procedural means to enforce filing of such application by the Supreme

Public Prosecutor’s Office. Apart from this, it follows from the

response of the Supreme Public Prosecutor’s Office to the submission of

the petitioner that the Supreme Public Prosecutor’s Office has at its

disposal no effective means to ensure legal protection of the

fundamental rights of the petitioner (the petitioner pointed out the

fact that the Supreme Public Prosecutor’s Office cannot order an expert

evaluation of the child’s DNA while a DNA test result provided by a

private company upon the initiative of the father cannot be used

either). Finally the petitioner referred to certain decisions of the

Constitutional Court where the Constitutional Court urged the Supreme

Public Prosecutor’s Office to review its attitude when it refuses to

deal with submissions seeking applications to contest paternity pursuant

to Section 62 of the Act on Family with reference to the absence of the

interest of the child in modification of family status (apart from the

Resolution referred to in point 8 the petitioner referred to Resolution

of Constitutional Court file number IV. ÚS 158/06 dated April 4, 2006

and Resolution file number IV. ÚS 466/07 dated May 28, 2007).

 

12.

Finally the petitioner noted the infringement of his fundamental right

to own property. The violation of the right to own property pursuant to

Article 11 of the Charter may be seen in the obligation to be fulfilled

in lieu of the biological parents potentially in lieu of the state as

well as in the fact that consequently the child having reached the age

of 18 will become an indisputable heir to the estate of the petitioner. 


C. Referral

to the Plenum of the Constitutional Court of Application seeking to

have Section 57 para. 1 of the Act on Family Annulled

13.

By a Resolution dated June 23, 2009 file number II. ÚS 405/09-58 the

Constitutional Court   arrived at the conclusion that by application of

Section 57 para. 1 of the Act on Family namely the wording “within six

months” a fact occurred that is subject to constitutional complaint and

the petitioner simultaneously alleged that the provision in question is

contrary to constitutional order. Thus the Constitutional Court referred

the petition seeking to have the relevant provision annulled to the

Assembly of the Constitutional Court for decision pursuant to Article 87

para. 1 letter a) of the Constitution.

 

14.

Simultaneously the Panel of Constitutional Court noted that the

relevant fact occurred through application of the entire provision

Section 57 para. 1 of the Act on Family. Should the assessment and

annulment of the statutory period of limitation be restricted to the

wording “within six months” as proposed by the petitioner, the Court

would create an entirely new legal norm stating that the husband of the

mother of the child may contest paternity of a child at any time which

would lead to a collision with the fundamental rights of a child to

protection of private and family right pursuant to Article 8 of the

Convention Article 32 para. 4 and Article 8 of the Convention on the

Rights of the Child, respectively to collision with a broadly perceived

term of the interest of the child the pursuit of which must represent

the primary focus in any activity related to children, whether

undertaken by public or private facilities of social care, courts,

administrative or legislative bodies pursuant to Article 3 para. 1 of

the Convention on the Rights of the Child, respectively  to a collision

with the warranty of special protection of children and adolescents

pursuant to Article 32 para. 1 of the Charter.

 

15.

The Panel of the Constitutional Court added that the provision of

Section 57 para. 1 of the Act on Family is contrary to the right to

respect of private and family life  of the father of the child in the

sense of the judgment of ECHR Shofman versus Russia (referred to in

point 7), contrary to the right to self-determination of the father of

the child as a component of the right to protection of privacy and

finally contrary to the right to effective remedy available to

protection of fundamental rights pursuant to Article 13 of the

Convention. In the opinion of the Panel of Constitutional Court the

unconstitutional nature of Section 57 para. 1 of the Act on Family lies

mainly in the disproportionality of fundamental rights and interests of

the father of the child whose paternity was determined on the grounds of

the first presumption of paternity, rights of the child and the child’s

mother. The unconstitutional nature of the relevant provision due to

collision with the interest of the child cannot be excluded. Thus,

pursuant to Article 78 para. 2 of the Act on Constitutional Court the

Panel of the Constitutional Court decided to refer the application

seeking to have the entire provision of Section 57 para. 1 of the Act on

Family applied in the instant matter struck down and thus establishing

procedural leeway for the Plenum of the Constitutional Court for complex

assessment of the colliding fundamental rights.

 


II. Summary of Statements of Parties to the Proceedings

 

16.

The Constitutional Court requested the file documents and invited the

parties to the proceedings to submit their opinion on annulment of the

contested provision. Due to the competence and scope of authority the

Ministry of Justice was also invited to submit its opinion.

 

17.

The Senate of the Parliament of the Czech Republic in its opinion

signed by its Chairman stated that the contested provision has been

included within the Act since the commencement of its validity having

come into force on April 1, 1964 with no amendments applicable. Since

the Senate of the Parliament of the Czech Republic was established as

late as in 1996 it is obvious that it did not participate in approval of

the relevant provisions.

 

18.

The Chamber of Deputies of the Parliament of the Czech Republic in its

opinion signed by the Deputy Chairperson Miroslava Němcová summarized

the relevant part of the assessment report for the relevant Bill of Act

on the Family that included the contested provision as well as the

legislative procedure in the National Assembly of the Czechoslovak

Socialist Republic in its third term of office. At the same time it

added that in spite of the extensive amendments to the Act on the Family

in the subsequent years the relevant provision has never been modified.

 

19.

The Ministry of Justice in its opinion stated that the legal means

applied when determining paternity stem from several social

requirements. The fundamental social requirement is to ensure that the

child has both parents. Another requirement is to ensure in the highest

possible number of cases that the legal relation is identical with the

biological one. Last but not least it is desirable to determine the

relationship as soon as possible after the birth of the child in order

to comply with the requirement of the maximum stability of the legal

relation of the parent and the child. Application of all of the

requirements is to be governed by the principle of the protection of the

best interest of the child. In the opinion of the Ministry of Justice

the absence of biological relationship between the petitioner and the

second interested party (the child the paternity of whose is contested

by the petitioner) is established. It is necessary to assess the

question of whether maintenance of the discrepancy between the legal

relation and the factual matrix is in the best interest of the child or

not. Under such circumstances the Supreme Public Prosecutor should have

paid more consideration to the option of submitting the application

seeking to contest the paternity since the instant circumstances meet

the statutory requirements under which such course of action may be

adopted. It is not sufficient to rely on the general notion that

contesting the paternity of a man who obviously is not the biological

parent of the child and who has no other emotional relationship the

child might benefit from is not in the interest of the child. The

Ministry of Justice disagrees with the proposal to annul the contested

provision of the Act on the Family and yet with respect to the fact that

the current legal framework and current practice of judicial bodies

relying on the provision are contrary to the adjudication of

Constitutional Court and the European Court, the Ministry proposes to

undertake amendment of the law. The amendment should specify the

circumstances under which the application seeking to contest the

paternity may be filed after the statutory period of limitation has

expired in cases when it is neither in the interest of the child nor in

the interest of the father recorded in the registry to maintain the

discrepancy between the legal and factual matrix.

 

20.

The Public Defender of Rights does not represent a party to the

proceedings on applications by the petitioner seeking to have provisions

of Section 57 para. 1 of the Act on Family annulled yet: he submitted

his opinion on the application based on his position of guardian ad

litem of the minor Z. S. in the proceedings on constitutional complaint.

In his opinion he did not recommend granting the application with

regard to the stable system of statutory paternity presumptions and the

time restrictions on the act of contesting paternity on the grounds of

the desired stability of a family representing the fundamental social

unit. At the same time the Public Defender of Rights noted the obvious

conflict of several interests protected by the Constitution - apart from

the legitimate interest to contest the paternity recorded within

registry as opposed to the paternity determined via exact means and the

right of the child to know its parents and the right of the mother to

protect her honour and privacy must be respected as well as the right of

the child not to have its private life interfered with, honour and good

reputation. The Defender further noted the absence of legal framework

enabling the courts to impose upon the parties to the proceedings (the

father recorded in the registry, the mother and the child) the

obligation to undergo DNA testing and the risk of undergoing such a test

in a not fully professional and expert manner.  

 


III. Wording of the Contested Legal Provision

 

21.

Provision of Section 57 para. 1 of the Act on Family reads: “A husband

may, within six months from the date on which he finds out his wife

delivered a child, contest before court that he is the father of the

child.”

 


IV. Constitutional Conformity of the Legislative Procedure

 

22.

Pursuant to Article 68 para. 2 of the Act on the Constitutional Court

in the proceedings on annulment of laws and other legal regulations the

Constitutional Court tests whether the contested act or other legal

regulation was enacted and published within the framework of the scope

of authority and competence set forth by the Constitution and in a

constitutionally prescribed manner. As follows from the opinions of the

parties to the proceedings the contested provision was incorporated in

the original wording of the Act on Family dated 1963 while not being

modified by any amendments. Assessment of the legislative procedure

would thus mean assessment of compliance with constitutional regulations

that are no longer valid and that were applicable at the time of

enactment of the Act. Based on Article 66 Section 2 of the Act on the

Constitutional Court pursuing a petition shall further be inadmissible

if, prior to its delivery to the Court, the constitutional act or the

statute, with which the enactment under review is alleged to be in

conflict, lost force and effect, the Constitutional Court thus notes

that in the event of legal regulations published prior to the

Constitution coming into force on January 1, 1993 it is entitled to

assess merely the compliance of the content with the current

constitutional order and not the constitutional nature of the procedure,

the origin of the regulations and their compliance with the norm-making

authority (cf. Judgment dated October 27, 1999 file number Pl. ÚS

10/99, N 150/16 SbNU 115, 290/1999 Coll.). Thus in the instant matter

the Constitutional Court was unable to assess the mentioned procedure.

 


V. The Review

 

A. Foundations of the Review from the Point of View of the Right to Protection of Private and Family Life

23.

The right to protection of private and family life pursuant to Article

10 para. 2 of the Charter and Article 8 of the Convention prevents the

public authorities from arbitrary interference with such an intimate

sphere of each and every individual as represented by relations between

parents and a child. Those relations amount to the most natural

expression of human identity and the right of a democratic and free

society must respect their existence. Neither the substance nor the

nature of family relations is primarily based on law; the law merely

awards protection to their real-life existence. Such protection cannot

be ensured solely by an obligation to adhere to certain principles on

the side of public authorities. The state is, at the same time, obliged

to enact legislation that will ensure legal recognition of family

relations and will determine the content of such relations both in

relations among the family members and relations towards third parties.

 

24.

The legal determination of family must, by nature of the matter,

reflect mainly the existence of biological relations. Thus follows the

requirement that the legal determination of paternity corresponds to the

biological father unless the case is the one of adoption. This

requirement is reflected in the subjective right of the child’s father

so that his biological paternity is respected by public authority. The

right of the child to know its parents expressly set forth by Article 7

Section 1 of the Convention on the Rights of the Child also appears to

correspond to that.

 

25.

The importance of biological relations for their legal determination

had already been emphasized by the Constitutional Court in its judgment

file no. II. ÚS 568/06 dated February 20, 2007 (N 33/44 SbNU 399).

Therein the Constitutional Court ruled on a constitutional complaint

related to the application seeking to contest paternity filed pursuant

to Section 62 of the Act on Family by Supreme Public Prosecutor in

response to the submission of the grandmother of the child who

questioned the paternity of the father determined by law of the child of

her deceased daughter. There the Constitutional Court noted in its

judgment that “when there is a conflict between the interests of persons

with blood ties, between whom social ties forming the typical features

of a family also demonstrably exist, and the interest of unrelated

persons, between whom and the child there were also formed in the past,

as a result of long-term co-habitation, the above-mentioned emotional,

social, and other ties, which would otherwise form the features of de

facto family ties, it is necessary – if there is no other compelling

reason – to provide protection to those family ties which, besides

emotional and social ties, also have the blood relationship.”(cf. 

Collection of Judgments, 114).

 

26.

On the other hand the insurance of the general requirement of

compliance between the biological father and the one determined by the

law cannot lead to disproportionate interference with the private life

of the parents of the child amounting to the obligation to inform the

public authorities on facts of their intimate life. Such obligation

would be unavoidable in the event the issue of paternity had to be

determined beyond reasonable doubt. Such obligation would, however, from

the point of view of the right to protection of privacy in a principal

and fundamental manner disproportionately interfere with both the

private sphere of individuals and the existence of mutual trust of the

parents of the child. Legal paternity is thus determined on the grounds

of statutory presumptions that stem from the cultural framework of the

society and enable the paternity to be determined without excessive

formal requirements. So-called marital presumption of paternity set

forth by Section 51 para. 1 of the Act on Family complies with the above

principles when, simply stated, the husband of the mother is deemed to

be considered the father of the child. Such presumption that had already

been expressed in Roman Law (pater est quem nuptiae demonstrant, thus

"the father is the one who married the woman”) stems from the assumption

that the husband of the mother is at the same time the true father of

the child.

 

27.

The presumption itself cannot, understandably, guarantee the true

existence of agreement of the legal and biological paternity. Potential

discrepancy between legally determined and biological paternity gives

rise to the legitimate question in what manner removal of such

discrepancy should be ensured. The fact that such circumstance

interferes with the family sphere of the legal father who is not the

biological father of the child and whose legal paternity was determined

solely by presumption of paternity cannot be omitted. In this manner the

circumstance is reflected within the legal father’s family and private

life in the scope determined by Article 10 para. 2 of the Charter and at

the same time it may interfere with the right of the child to know its

parents pursuant to Article 7 para. 1 of the Convention on the Rights of

the Child (compare the above points 23 and 24 of this Judgment)

 

28.

The right to remove the discrepancy between the legal and biological

paternity is supported by the father’s applications seeking to contest

paternity pursuant to Section 57 para. 1 of the Act on Family. This

provision primarily addresses the status of a legal father of a child

following their presumed family relation. The objective pursued by this

provision may undoubtedly be considered to be compliant to the interest

that the legal determination of the father corresponds to the biological

paternity. On a general level the conclusion can be found compatible

with the rights of the child to know its parents expressly set forth in

Article 7 para. 1 of the Convention on the Rights of the Child.

 

29.

Still the requirement of the agreement between the legally determined

and the biological parent cannot be held absolute. The legal relation of

the father and child does not amount to a mechanical reflection of the

existence of a biological relationship since in time even if such

biological relation is absent such a social and emotional tie can

develop between the legally determined father and the child that from

the point of view of the right to protection of private and family life

this relation will be within the ambit of legal protection. In such a

case further duration of legal relations will be dependent on more

factors among which the interest of the child will have an important

role - pursuant to Article 3 para. 1 of the Convention on the Rights of

the Child such an interest has to be the primary concern in

decision-making activity of public authorities while, however, the child

has the right to know its parents conferred by Article 7 para. 1 of the

above Convention. However, the interest of the biological father who is

not awarded the status of legal father and is seeking such a status

cannot be denied as irrelevant nor can the interest of the legal father

who is not the biological father and is contesting his paternity be

dismissed. The right to the protection of private and family life of the

mother of the child must also be assessed.

 

30.

With respect to the above circumstances it is necessary to deal with

the question whether the right to protection of private and family life

conferred onto the legally determined father of the child in Article 10

para. 2 of the Charter and Article 8 of the Convention asserts the right

of the legal father to seek to have the legal circumstances of

disagreement between biological and legal paternity removed by public

authorities and if so, under what conditions. While seeking to answer

this question other rights and interests defined within the previous

section of this Judgment must be considered.

 

31.

The Constitutional Court has not yet addressed this question directly.

In its adjudication the Court has been mainly confronted with

constitutional complaints of petitioners directed against communication

notice by the Supreme Public Prosecutor informing them that their

submission initiating application seeking to contest paternity pursuant

to Section 62 of the Act on Family is suspended. In relation to this the

Constitutional Court has repeatedly stated with reference to the

above-mentioned decisions of the European Court that “the current legal

matrix when the husband has the right to contest the paternity only

within the period of limitation of six months after the birth of the

child....and when the Supreme Public Prosecutor’s Office rejects to file

the mentioned application may under certain circumstances collide

mainly with Article 8 of the Convention.....and of course with the

fundamental rights and basic freedoms guaranteed by the constitutional

order..” (Resolution file number III. ÚS 289/07 dated April 26, 2007,

Resolution file number III. ÚS 1506/07 dated January 17, 2008.) At the

same time the Constitutional Court urged the Supreme Public Prosecutor’s

Office to take regard to adjudication of European Court when

interpreting the Article 8 of the Convention in assessing whether to

file the action pursuant to Section 62 of the Act on family or not.

 

32.

Pursuant to Article 8 of the Convention the state parties to the

Convention are not only bound by the obligation to protect the

individuals from arbitrary acts of public bodies but also a positive

obligation to ensure effective respect towards private and family life.

This might also mean an obligation to adopt measures that affect legal

relations among individuals (compare judgment Mikulić versus Croatia,

cited in section 10, section 57 and other cited judgments).  Regard must

be taken to fair balance that is to be achieved between the competing

interests of individual and the society as a whole. In both cases the

state has at his disposal certain discretion (compare judgment Mikulić

versus Croatia, cited in section 10, section 57 and other cited

judgments). The limits of such discretion are outlined by further

adjudication of the European Court.

 

33.

In its judgment in Kroon versus the Netherlands (quoted in point 7) the

European Court noted that it is not permissible for the legal

presumption of paternity to prevail over biological and social facts

unless regard is paid to both the established facts and the wishes of

the interested individuals. The European Court analyzed this conclusion

in its judgment in Shofman versus Russia (quoted in point 7 of this

Judgment) when it recognized a breach of the fundamental right of the

petitioner pursuant to Article 8 of the Convention as a result of

absence of opportunity to contest paternity. The legislation therein

only allowed for such option within the statutory period of one year

from the date when the person officially recorded in the registry as

father finds out that the birth of a child has been recorded. The

relevant judgment does not recognize that the Convention is violated as a

result of the very existence of the statutory period of limitation of

one year within which paternity can be contested but as a result of such

a period of limitation being tied to the date when the husband of the

mother of a child learns that the birth of a child has been recorded

while no other means were provided to the father determined by the

presumption of paternity to contest the paternity in circumstances when

even a court deemed him not to be the biological father.

 

34.

The statutory period of limitation available to contest paternity had

previously been accepted by the European Court in its earlier decisions

when it emphasized that introducing a period of limitation regarding the

proceedings seeking to contest paternity is justifiable by the pursuit

of legal certainty in family relations and pursuit of protection of the

interests of the child (judgment Rasmussen versus Denmark, quoted in

point 7, point 41). The European Court further found in another matter

that as soon as the period of limitation available to the petitioner to

contest the paternity has expired, more weight was accorded to the

protected interests of the child than to the interests of the petitioner

to contest the paternity (decision on admissibility in Yildirim versus

Austria, quoted in point 7). The fact whether the petitioner knew with

certainty or had reasons to assume that he is not the biological father

of the child from the very birth of the child and failed to take action

to contest presumption based paternity is relevant to the assessment.

When assessing the infringement of Article 8 of the Convention is thus

rather concerned with defining the conditions of determination of the

period of limitation available to contest paternity rather than the very

existence of such period of limitation.

 

35.

The last above-mentioned decisions of the European Court were reflected

by the Constitutional Court within the assessment of the constitutional

complaints directed against the procedure adopted by the Supreme Public

Prosecutor. In its Resolution file number IV. ÚS 2058/07 dated March 3,

2008 (U 3/48 SbNU 977) the Constitutional Court noted that “it is

clearly established by the content of the submitted application that the

petitioner had doubts of substantial nature regarding his paternity as

early as in the course of the statutory period of limitation within

which he was allowed to pursue the right denied to him by submitting an

action; had he not assumed such doubts, he would certainly have not had

any reason to verify the circumstances by initiating a DNA test.

However, then the indifferent approach of the petitioner towards the

statutory period of limitation available for submission of the action

(whether it be for either lack of knowledge regarding the period of

limitation or other reasons) appears to represent an action - or rather

more precisely said ‘absence of action’-  leading to the consequence

against the petitioner expressed by an ancient principle formulated by

Justinian:  ‘vigilantibus, non dormientibus iura subveniunt’ - ‘the law

assists those that are vigilant with their rights, and not those that

sleep thereupon'. Thus, initially not the communication by the Supreme

Public Prosecutor’s Office addressed to the petitioner after the

expiration of the statutory period for paternity action but the

circumstances brought upon by the petitioner himself - due to his

inactivity regarding the paternity action - resulted in the situation

that in deed could be generally viewed as contrary to the fundamental

right ....to respect of family life” (cf. Coll. of Judgments, 981 -

982).

 

36.

In the light of the above conclusions of the Constitutional Court and

the European Court it can be summarized that the question of existence

of agreement between biological and legal paternity is reflected in the

fundamental right of an individual in the position of the legally

determined father who alleges that he is not the biological father to

the protection of private and family life pursuant to Article 10 Section

2 of the Charter and Article 8 of the Convention as well as in the

right of the child to know its parents conferred by Article 7 Section 1

of the Convention on the Rights of the Child. Equally the marital

presumption of paternity with no sufficient opportunity to legally

contest the agreement of legal and biological paternity and at the same

time to seek declaration that the legal paternity is void in the case it

disagrees with the biological paternity may under certain circumstances

represent breach of such a right. A conclusion cannot be arrived at

that the continuation of legal paternity which is in disagreement with

biological paternity amounts to a breach of the fundamental right of the

legal father to private and family right by a public authority. Regard

must necessarily be paid to the fact of whether the interest of the

child exists in continuation of such status as well as whether the legal

father had or might have had the knowledge of the fact that he is not

the biological father of the child, whether he had the opportunity to

seek determination before a public body that he is not the legal father

of the child and finally whether he made use of such an opportunity.

 

 

B. Assessment of the Petition

37.

The matter of constitutional assessment in the instant case is the

question of whether the opportunity to contest paternity within the six

month statutory period of limitation commencing at the time when the

husband learns of the birth of a child to his wife will stand from the

point of view of constitutionally guaranteed rights of the legal father -

thus of the individual the paternity of whose is determined by the law

by marital presumption. The Constitutional Court has repeatedly

addressed the issues of the constitutional nature of period of

limitations in a number of its judgments while it noted that a statutory

period of limitation prima facie does not and cannot in itself bear any

elements of unconstitutionality. Such elements may appear only from the

“specific circumstances” of the evaluated matter, in other words,

“evaluation of the constitutionality of a period of limitation/deadline

is an evaluation in context” [judgment file number Pl. ÚS 6/05 dated

December 13, 2005] (cf. N 226/39 Coll. of Judgments 389; 531/2005

Coll.)]. Such specific circumstances include, in reliance on current

case law of the Constitutional Court, mainly disproportionality of the

period of limitation in relation to the opportunity to enforce a

constitutionally guaranteed right being limited by a period of

limitation [cf. Judgment file no.  Pl. ÚS 5/03 dated July 9, 2003). (cf.

N 109/30 Coll. of Judgments 499; 211/2003 Coll.)] or arbitrariness of

the legislature in establishing the period of limitation (its

codification or annulment) [cf. Judgment file no. Pl. ÚS 2/02 dated

March 9, 2004 9 (N 35/32 Collection of Judgments 331; 278/2004 Coll.)].

 

38.

Although legal presumptions of paternity as mentioned earlier simplify

the determination of paternity in a significant manner, they cannot by

the nature of the matter be deemed to represent sufficient guarantee of

agreement between biological and legal paternity. It is thus necessary

for the legal order to establish other means apart from such

presumptions that will serve the purpose to the individual whose

paternity was determined by presumption and who is contesting his

biological paternity to seek protection of his subjective rights by

establishing in proceedings before a public authority that he is not the

biological father of the child.

 

39.

Such requirement does not only follow from the right to the protection

of private and family life as analyzed in detail by the Constitutional

Court in the previous part of this Judgment but is in essence related to

the right to have one’s subjective rights protected before court

conferred upon each and every individual by Article 36 Section 1 of the

Charter.

 

40.

Paternity action that may be filed by the Supreme Public Prosecutor

pursuant to Section 62 of the Act on Family cannot be deemed to

represent legal means of protection of the fundamental right of the

legal father. Such action pursues a different objective than action

submitted pursuant to the contested provision. The Supreme Public

Prosecutor may file the above action solely in the interest of the

child. Such interest, however, will not be identical to the one of the

legal father. If we take regard of the fact that in the instant case the

petitioner’s child is a minor one, the legal relation between the legal

father and the child will, by nature of the matter and not only in this

case, pursue mainly the interest of the minor child and thus it will

hardly be possible to anticipate that the supreme public prosecutor will

file paternity action.

 

41.

Equally the fact that there is no legal entitlement to have the

paternity action filed by the Supreme Public Prosecutor and that it is

solely at the discretion of the Supreme Public Prosecutor to file such a

submission cannot be disregarded. A potential submission of a father

determined by marital presumption seeking to initiate such action does

not represent an application to initiate the proceedings itself; it does

not initiate proceedings in which a decision must be issued that would

be subject to judicial review regarding the application of the

discretionary power of the public prosecutor. This has repeatedly been

affirmed by the Constitutional Court when it noted in certain decisions

that the procedure adopted by the Supreme Public Prosecutor or their

memorandum informing the author of the submission that the action shall

not be filed “cannot be deemed to represent infringement by a public

authority pursuant to Article 72 para. 1 letter a) of the Act on the

Constitutional Court (cf. i.e. Resolution file No. IV. ÚS 2058/07 cited

in point 35, cited in Collection of Judgments 982, in detail in

Resolution file no. III. ÚS 289/07 dated April 24, 2007). It thus means

that it is entirely at the discretion of the Supreme Public Prosecutor

to assess the question of interest of the child and its potential

agreement with the interest of the legal father in a specific matter

while the discretion of the supreme public prosecutor is not subject to

judicial review. On the problematic issue of regarding the application

of the supreme public prosecutor seeking to have the paternity contested

compare forward the source of Jíšová, A.: Application of the Supreme

Public Prosecutor seeking to have the paternity contested in practice

(for discussion). Bulletin of Advocacy. 11-12/2006,  pg. 80 to 86.

 

42.

On the other hand, the contested provision of Section 57 para. 1 of the

Act on Family undoubtedly confers one of the above mentioned means

mentioned in point 37 since it allows for the husband of the mother of

the child to contest the paternity by paternity action that must be

filed within the statutory period of limitation of six months from the

day on which the father learned of the birth of the child to his wife.

Thus certain procedural leeway is established for the husband of the

mother to seek protection of his rights by determining he is not the

true father of the child, for which reasons cannot be deemed the legal

father. It must, nevertheless, be assessed whether the circumstances for

application of the contested provision respect the limits determined by

law in order to protect private and family life, addressed in detail in

the previous part of this Judgment as well as the right to judicial

protection pursuant to Article 36 para. 1 of the Charter.

 

43.

The contested provision restricts the opportunity to file paternity

action to the period of six months from the day when the husband of the

mother learned that a child has been born to his wife. It is obvious

that in the vast majority of cases to which the relevant provision will

apply the day when the husband will learn of the birth of the child will

be identical to the one of the date of birth of the child. Such

definition of the statutory period of limitation, however, entirely

denies the substantial nature of time at which the man whose paternity

was based on marital presumption learns relevant facts questioning his

paternity. And yet, it is clear that it is only from such a time when

the legal father has a real opportunity to assess the consequences of

such findings on his personal life including the opportunity to turn to

the relevant public authority with an application seeking to contest his

paternity.

 

44.

The period of limitation set forth in such a manner fails to reflect

the specific nature of legal relations between the legal father and the

child. When establishing the statutory period of limitation for

paternity action presumption that the legal father had to have or should

have had the knowledge of all relevant circumstances leading to his

potential interest in contesting paternity at the time when he learned

of the birth of the child to his wife cannot be relied on. Equally the

requirement cannot be imposed upon the husband to undertake preventive

review of certain circumstances potentially establishing that he is not

the biological father of the child within the first six months since the

birth of the child. The determination of an effective opportunity to

seek protection of one’s right must also reflect the other side of the

right to protection of private and personal life prohibiting the state

from arbitrary and disproportionate manner of interference with private

and family life of an individual. This means that the legal provisions

may not ignore the fact that a substantial legal interest in contesting

paternity may arise in a (sometimes significant) time interval after the

birth of the child and neither may they ignore the fact that even at

such time the interest of the father in denying paternity may prevail as

indicated by adjudication of ECHR (compare ECHR Judgment Shofman versus

Russia, cited in point 7 or ECHR Chamber Judgment Paulík versus

Slovakia dated October 10., 2006, application no. 10699/05, where the

applicant successfully sought to contest paternity more than 30 years

after the birth of the child).

 

45.

On those grounds the Constitutional Court arrived at the conclusion

that the contested provision of Section 57 para. 1 of Act on Family is

contrary to Article 10 para. 2 of the Charter and Article 8 of the

Convention as well as contrary to Article 46 of the Charter.

 

 

VI. Wording of Derogatory Statement and Legal Effect of the Derogatory Statement on Legislature and Ordinary Courts

 

46.

The Constitutional Court held in response to the proposition of the

Second Panel of Constitutional Court to annul the entire contested

provision of Section 57 para. 1 of Act on Family. In this light the

Court emphasizes that the above reasons do not in any manner undermine

the constitutionality of the opportunity to file a paternity action in

the period of limitation within six months from the date when the father

learns of the birth of a child to his wife. Derogatory grounds do not

effect the entitlement that had not been contested in itself by the

petitioner but on the exclusion of the submission of paternity action

after expiration of the period of limitation. The Constitutional Court

was not able to grant the petition solely in relation to the wording

“within six months”, thus in the extent in which the petitioner sought 

to have the contested provision annulled.

 

47.

By such procedure applied by Constitutional Court a new legal norm

would be established enabling paternity actions regardless the infringed

rights and protected interests of individuals other than the legal

father of the child who intends to contest his paternity defined in

point 29 of this Judgment. Derogatory judgment would thus remove the

infringement of fundamental rights of legal father but at the same time

establish infringement of fundamental rights and protected interests of

other interested individuals.

 

48.

As noted above by the Constitutional Court the determination of

definite limitation period for paternity action is not in itself

unconstitutional; such period of limitation and circumstances of its

duration must, however, well as the limitation period itself be defined

so as to respect all  concerned rights and protected interests in a

balanced manner.

 

49.

An option arises that the legal father determined by marital

presumption would be awarded an opportunity to file a paternity action

contesting paternity for a certain period of time regardless further

circumstances (fundamental rights and protected interest defined in

point 29 of this Judgment) as is the current case. In such case,

however, the period of six months is to be considered as

disproportionately short and the determination of commencement on the

day when the husband of the mother learns of the birth of the child

(Section 57 para. 1 of the Act on Family) is equally problematic as

follows from reasoning provided in detail above in Section 44 of this

Judgment. In Slovak Republic the originally three years long statutory

period of limitation was replaced by period of limitation in the

duration of three years. 

 

50.

Even after expiration of the period of limitation construed in such a

manner the paternity actions cannot be denied entirely to individuals

who might have a legitimate interest in contesting paternity (defined in

point 29 of this Judgment) mainly lying in protection of their

fundamental rights.  Currently Section 62 of the Act on Family allows

for submission seeking to contest paternity regardless the passage of

time, nevertheless only with regards to the interest of the child. As

has already been stated in the above points 40 and 41 of this Judgment

such application cannot be deemed to represent sufficient means of

protection of rights pursuant to Article 36 of the Charter and it is a

question what is the justification behind such application in the legal

order of a democratic rule of law state. In relation to this it does not

appear uninteresting to mention that this legal tool was first

established in the legal order applicable within the territory of

current Czech Republic within the so called race-oriented legislation

(Section 2 para. 3 of the Government Decree No. 180/1941 Coll., by which

certain regulations regarding disputes on family or blood-related

origin are issued). 

 

51.

To ensure protection of fundamental rights and protected interest

defined in point 29 of this Judgment it is thus necessary to amend in a

special manner the application seeking to contest paternity that might

be submitted in the interest of the protection of such rights and

protected interests of the relevant individuals, including legal father

whose special period of limitation allowing for the submission of such

application specified in point 49 above has already expired. When

construing the admissibility of such application the fact must be

regarded whether the legal father might have learned the circumstances

casting doubts over his paternity and whether having knowledge of such

circumstances he took legal action to contest his paternity and whether

the act of contesting the paternity is not hindered - in the specific

case and not in general - by other  protected interests, mainly the

interest of the child to which privileged and yet not an absolute status

is assigned by Article 3 para. 1 of the Convention. Thus when

establishing new period of limitation affecting other presumptions  of

paternity and other entitled entities the legislature should regard the

interest of all interested parties to the proceedings with special

emphasis placed on the interest of the child and stability of family

relations as well as the need of family background for the upbringing of

the child. Should the legislature amend the opportunity to waive even

the newly established limitation period in entirely special and

justifiable cases that are by current legislation solely at the

discretion of the Supreme Public Prosecutor not only must the

legislature stipulate clear conditions for such a waiver of period of

limitation but also clear limitations in the interest of the protection

of the rights of the child and the mother. From the point of evidentiary

issues in paternity disputes the procedural regulation will have to be

amended accordingly regarding the evidentiary tools allowing for the

expert opinions in the area of healthcare and branch of genetics,

conducted via the method of DNA polymorphism testing with obligatory

participation of the presumed father, the child and the mother.

 

52.

Since the derogatory reasons do not relate to the possibility of

submission of paternity action in the period of limitation stipulated by

the contested provision but to the exclusion of application of the

limitation period at a later date and regarding the necessity of

establishing sufficient time scale for a complex assessment and

enactment of new legislation, the Constitutional Court held pursuant to

Section 70 of the Act No. 182/1993 Coll., on the Constitutional Court

that the contested provision shall be annulled as off December 31,

2011. 

 

53.

To conclude the Constitutional Court adds that the assessment of the

compliance of the Act or of another legal regulation in proceedings

pursuant to Section 64 and subs. of the Act No. 182/1993 Coll. on the

Constitutional Court in its latest wording is not reflected merely in

the sphere of validity of the legal regulation but also in the sphere of

applicability of the relevant regulation. The Constitution itself does

not restrict the protection of fundamental rights and freedoms in the

case when the grounds for their infringement rest in the application of

unconstitutional legal norm merely to the annulment of such legal norm

by the Constitutional Court but assumes that the conclusions of the

Constitutional Court will be reflected in relation to the application of

such norm by public authorities. Such conclusion is obvious from the

consistent adjudication of the Constitutional Court that allows for the

review of an annulled Act upon a petition of an ordinary court pursuant

to Article 95 para. 2 of the Constitution in the event that it arrives

to the conclusion that it is contrary to the constitutional order; c.f.

i.e. Judgment file no. Pl. ÚS 38/06 dated February 6, 2007 (cf. N 23/44

Coll. of Judgments 279; 84/2007 Coll.). In such a case it is not

decisive whether the concerned Act had been annulled but whether the

legal norm contained within the wording of such an Act is still

applicable and the assessment of the question of constitutionality is a

necessary presumption for the decision of the court in the matter

itself. The Constitutional Court thus does not rule on annulment of an

Act that has already been annulled but on its applicability while the

consequence of the academic statement on collision with the

constitutional order lies in non-applicability of the concerned legal

provision should not only the legal provision and thus the legislative

tool be contrary to the constitutional order but should this be the case

also for the purpose or definition of the circumstances under which the

purpose intended by the legislature may be achieved in a

constitutionally conforming manner, that means by direct application of

the constitutional order; c.f. Judgment file no. Pl. ÚS 35/08 dated

April 7, 2009 (151/2009 Coll.).

 

54.

The above conclusions were relied on by the Constitutional Court in the

instant case. The potential consequence in the form of

non-applicability of the Act cannot be restricted solely to the

proceedings on application by an ordinary court pursuant to Article 95

para. 2 of the Constitution as it is related  to all other cases when

the Constitutional Court notes collision of an Act with constitutional

order and the relevant derogatory reason affects the legal status of an

individual with respect to the fundamental rights and freedoms.

Moreover, in the instant case the petitioner in question filed the

application seeking to have an Act annulled as well as the

constitutional complaint while pursuing protection of his fundamental

right. The Constitutional Court thus notes that establishing a later

date for annulment of the contested provision may not lead to the

conclusion that the ordinary courts are obliged to apply the concerned

provisions in the extent in which it is affected by the derogatory

reason should as a result of such application a possibility arise of

interference with a fundamental right or with freedom of a party to the

proceedings.

 

55.

In relations to Section 57 Article 1 of the Act on Family this means

that should the legal father determined by the marital presumption learn

of facts that would cast doubt over his biological paternity in the

course of or after the expiration of limitation period for paternity

action the ordinary courts are obliged to refrain from application of

the concerned period of limitation and assess the action in question

even if the action is submitted after the expiration of limitation

period. Non-application of such period of limitation does not, however,

mean absence of time constraint with regards to such action. The

Constitutional Court did not find that the existence of the period of

limitation as such was unconstitutional but held that the exclusion of

an opportunity to contest legal paternity in a legally relevant manner

was unconstitutional. Should the ordinary courts assess the action in

question they will not only have to assess the question of paternity but

also the question of the concerned rights and protected interests

defined in point 29 of this Judgment. Until the legislature issues a new

decision on definition of period of limitation for paternity action

this thus means also assessing whether the action will stand from the

point of view of proportionality of interference with the rights and

protected interest of other persons mainly with regards to the time

elapsed from the date when the facts relevant for paternity action were

learned.

 

Note: Appeal against this decision is inadmissible.