2009/04/02 - II. ÚS 1945/08: Right of a Child to be Heard

02 April 2009

HEADNOTES
For the child,

the family environment is a space of freedom and, therefore, no other

environment may be considered a space of personal freedom for the child.

The latter is especially true for facilities established by the bodies

of public power, in particular institutional facilities, which

(necessarily) have their own way of operating that is (in accordance

with the law) enforced upon their residents. It is essential that in a

case of infringement of personal freedom, there is a general fundamental

right to be heard before a court which makes a decision on the

limitations of freedom, and this at any time such decision making takes

place (file No. Pl. ÚS 45/04, N 60/36 SbNU 647; judgment of the European

Court of Human Rights in the case of Husák v. the Czech Republic No.

19970/04, dated 4 December 2008 and others). In principle, there is no

reason for a child not to have the fundamental right to be heard

directly before a court when a decision is being passed on restricting

their personal freedom whilst an adult has such a right in the same

circumstances. A relevant reason for denying the right of a child to be

heard surely occurs when the child is not capable, with respect to the

level of their development, of forming an opinion and evaluating the

bearing of the measures relating to them. When taking into account the

specific situation (see file No. III. ÚS 495/03, N 117/34 SbNU 223), it

is necessary to proceed from the fact that a man matures, in terms of

intelligence, between the ages of 11 and 12 (Piaget, J.: Psychologie

inteligence /Psychology of Intelligence/. Prague: Státní pedagogické

nakladatelství /Educational Publishing House/, 1970. pp. 105-128), and

peak performance is seen at 16 years of age. Therefore, in the case of

decision making on imposing institutional upbringing on a child older

than 12 years of age, there is in principle no reason for denying the

right of a child to be heard directly by a court. Thus, alternatives

provided by law were always to be considered as exceptions which must be

properly substantiated by the court in its decision.

In

the case under consideration, the ordinary court was thus obliged to

allow the petitioner-son, with respect to his intellectual development,

to exercise his right to be heard directly before the court, and should

not have settled for merely a statement that the petitioner-son’s

opinion was known to the court, which is what actually took place.

Therefore,

the Constitutional Court has completely granted the constitutional

complaint, since the ordinary court, by not hearing the petitioner-son,

violated his fundamental right to judicial protection pursuant to Art.

36, para. 1 of the Charter, in connection with Art. 12, para. 2 of the

Convention on the Rights of the Child, Art. 3, clause b) of the European

Convention on the Exercise of Children’s Rights, and Art. 8, para. 1.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


A

Panel of the Constitutional Court, consisting of Chairman Stanislav

Balík and Justices Dagmar Lastovecká and Jiří Nykodým, adjudicated the

matter of a constitutional complaint filed by 1) I. O. and 2) J. O.,

both represented by Mgr. David Strupek, an attorney at law with a

registered office in Prague, against a judgment of the Regional Court in

Prague, file No. 28 Co 239/2008, dated 27 May 2008, with participation

by the Regional Court in Prague, as a party to the proceedings, as

follows:
 

Judgment of the Regional Court in Prague, file No. 28 Co 239/2008, dated 27 May 2008, shall be annulled.
 



REASONING


I.
Recapitulation of the petition
 

1.

In the constitutional complaint, sent by post on 1 August 2008, the

petitioners sought the annulment of the judgment specified above,

whereby, following an appeal by the mother as one of the petitioners

(hereinafter only “petitioner-mother”), judgment of the District Court

for Prague-West, file No. 11 P 156/2007-85, dated 17 March 2008, was

confirmed, in which a petition by the mother concerning cancellation of

upbringing of the other petitioner (hereinafter only the “minor” or

“petitioner-son”) by an institution was dismissed. The petitioners

object that the contested decision and the proceedings prior to the same

violated Art. 10 para. 2 and Art. 32 para. 4 of the Charter of

Fundamental Rights and Basic Freedoms (hereinafter only the “Charter”),

Art. 8 of the Convention on the Protection of Human Rights and

Fundamental Freedoms (hereinafter only the “Convention”), and Art. 9

para. 1 and para. 2 and Art. 12 of the Convention on the Rights of the

Child.

2. Firstly, the constitutional complaint, with respect to

the petitioner-son being a minor, contains arguments derived from

various decisions of the European Court of Human Rights, stating that a

biological parent is entitled to represent a child not of legal age. In

addition to this, it is stated that the petitioner-son decided to file a

constitutional complaint of his own volition; and granted, at the age

of sixteen, a power of attorney for this purpose.

3. Within the

merits of the case, the petitioners specifically state that the decision

was not issued in accordance with the law since the petitioner-son had

not been heard in the proceedings prior to the given decision, and thus

his opinion was not taken into account. The petitioners do not question

the conclusion of the court that the wish of the petitioner-son to

return home was indubitable even without hearing this petitioner, but

they believe that discussion with the petitioner-son could have been

held within the scope of examinations concerning the reasons for

ordering the minor to be placed in an institution. Furthermore,

inquiries could have been made concerning other potential solutions,

plus the seriousness and trustworthiness of his declared commitments

could have been evaluated, impacts of his upbringing administered by a

relevant educational institution (“institutional upbringing”) on his

attitude could have been assessed by direct contact, and so on. The

petitioners criticise the absence of any deliberation on why family care

in an establishment for children requiring immediate help was not

preferred. In connection with this, the petitioners also believe that

the ordinary courts did not have access to sufficiently thorough data

for making a decision on the hitherto effects brought by the

institutional upbringing on the petitioner-son, and the trustworthiness

of his commitments in such a respect. What is particularly unconvincing

(as it is basically absent) is the evaluation of a report by the

diagnostic institute, which discourses on the motivation of the

petitioner-son and his growing activities. It must be added that, by

contrast, the result of the contested proceedings frustrates the

petitioner-son and discourages his motivation. The court of appeal took

its decision seven months after the institutional upbringing was

imposed, and its deliberations on the prematurity of the petition for

cancelling the same are thus in conflict with the above-stated

principles of temporariness of the institutional upbringing, necessity

for regular revisions, and preference for alternative solutions, with

positive obligations on the part of the state to make active steps

towards an as expeditious as possible reunification of the family.

4.

The petitioners further object that their family life was not

respected, and that infringement of the same by the court was not

necessary, even though it pursued a legitimate objective. They consider

unquestionable that the institutional upbringing was imposed due to the

truancy of the petitioner-son and subsequent lack of cooperation by this

petitioner in a therapeutic solution attempted. There is no doubt on

their part of the importance of education, i.e. the social need for at

least practical education to be provided in order to enhance one’s

position in the labour market, which is, in a liberal society, a

precondition for any future self-realisation, in particular in light of

the fact that the petitioner-son may be disadvantaged in the labour

market due to his ethnicity. They admit that the petitioner-son’s

detriment – defects in education – is more serious than that in the case

of W. and W. v. the Czech Republic (judgment of the European Court of

Human Rights, No. 23848/04, dated 26 October 2006), and in the case of

H. and others v. the Czech Republic (judgment of the European Court of

Human Rights, No. 23499/06, dated 21 June 2007), where defects were only

found in insufficient financial conditions. In spite of this, they

believe that the social need is not pressing enough to justify breaking

up the family. At the time when the decision of the court of appeal

became finally legally binding, the petitioner-son was about to complete

compulsory education, and the court of appeal itself substantiated that

the institutional upbringing continue solely and exclusively due to the

need to ensure regular attendance by the petitioner-son at an

apprenticeship college. The petitioners are convinced that the need to

ensure regular attendance in order to guarantee a practical education is

not pressing enough to make up for the detriment caused in emotional

bonds between the petitioners and other family members. They also refer

to consequences of being brought up by an institution as described in

specialised literature, especially “emotional deprivation” or showing

considerable deviations from common standards of development of

personality and the challenges of gaining social acceptance at an older

age (all, for example, in Matějček, Z., Bubleová, V., Kovařová, J.:

Pozdní následky citové deprivace a subdeprivace /Late Consequences of

Emotional Deprivation and Sub-deprivation/, Prague: Psychiatrické

centrum /Psychiatric Center/, 1997. pp. 57, 58; or Langmeier, J.,

Matějček, Z.: Psychická deprivace v dětství /Psychological Deprivation

in Childhood/, Prague: Státní zdravotnické nakladatelství /State Medical

Publishing House/, 1963, p. 42).

5. The petitioners refer to the

fact that panels 23 Co and 24 Co of the same Regional Court reached, in

connection with the time of the contested decision, absolutely

contradictory general conclusions in evaluating the proportionality of

the measures taken. In cases 23 Co 482/2007 (29 November 2007) and 24 Co

469/2007 (13 March 2008) they decided that not even profound truancy by

minors gaining compulsory education constitutes a social need pressing

enough to make it appropriate to sever well-functioning emotional bonds

between children and (especially) their mother, which were acknowledged

as unquestionable.

6. The petitioners, referring to judgment “H.

and others” consider it regrettable that the minor petitioner was,

within the proceedings, procedurally represented by a body for social

and legal protection of children, that also held the position of a party

to the proceedings, which (in the prior proceedings) proposed the

institutional upbringing. Representation of the child by an entity not

previously involved would definitely have been more appropriate, since

the secondary party, a body for social and legal protection of children,

has maintained neither a level-headed perspective of the situation nor

professional neutrality, and looked upon the proceedings as a matter of

pride. Beyond the scope of the relevant facts, the petitioners note that

this body and the Children’s Home in Ledce at present restrict the stay

of the petitioner-son with his family during holiday period and assert

the same due to the necessity of his adapting to the new environment.

They stated that the very proceedings specified above, which related

also to children from the settlement called “Kolonie” in Libčice nad

Vltavou and in which parents were counselled in terms of social and

legal matters by the same non-profit organisation, were the reason for

escalation of the attitude of the body for social and legal protection

of children in other cases too.
 


II.
Formal requirements
 

7.

The Constitutional Court firstly dealt with the formal requirements

concerning the filed constitutional complaint and, like the petitioners

in this connection, in particular with the active standing, or capacity

of the minor (born 16 June 1992) for procedural acts. It is a fact that

in settled decision making by the Constitutional Court, in situations

when a minor is a secondary party to the proceedings and the

Constitutional Court does not deny the constitutional complaint, a

procedural guardian is regularly appointed for such a person. This is

supported, in accordance with § 63 of Act No. 182/1993 Coll. on the

Constitutional Court as amended by later regulations (hereinafter only

the “Act”), by § 20 in connection with § 29, para. 1 of the Civil

Procedure Code, and in connection with § 83, para. 1 of the Family Act.

However, this practice cannot be utilised in this case as the position

of the minor differs. Even the case resolved by Judgment file No. II. ÚS

125/98 (N 105/12 SbNU 87), in which minors were the only petitioners in

the case of regulating visits with their father, cannot serve as an

example. In that instance, the minors were admitted capacity for

procedural acts in the proceedings before the Constitutional Court with

respect to their age (11 and 12 years) and intellectual level

ascertained by the ordinary courts, a child-care body was also appointed

as a guardian with respect to the given proceedings.

8. It is

necessary to start from the point that any natural person may be a

petitioner, when such a person is a beneficiary of the asserted

constitutionally guaranteed fundamental right or basic freedom,

irrespective of such a person’s capacity for legal acts or age. The

constitutional complaint is aimed against a decision in the case of an

institutional upbringing imposed on the basis of a proposal by a body

for social and legal protection of children – while under these

circumstances, such a body is to be appointed as a guardian who insists

on the continuance of the same. In addition to the minor, the

constitutional complaint was also filed by his mother, who, concurrently

with the minor, empowered the attorney at law to represent the minor.

Thus, without feeling the need to deliberate on another possible

guardian for the minor in the proceedings before the Constitutional

Court in the case under examination, in particular due to the fact that

in the given case there was no risk of a clash between procedural

interests of the petitioners mutually, or between the individual parents

or between the parents on one part and the minor on another, and since

the petitioner-son has nearly come of age, the Constitutional Court

inclined towards opinion held by legal theory. According to the same, if

the petitioner does not have full capacity for legal acts due to their

youth, a constitutional complaint may be filed in the stead of such a

person by his or her legal guardian, who also grants power of attorney

to an attorney at law (Wagnerová, E., Dostál, M., Langášek, T.,

Pospíšil, I.: Zákon o Ústavním soudu s komentářem /Annotated Act on the

Constitutional Court/. Prague: Aspi, 2007. Page 404, clause 9).

Therefore, the Constitutional Court concludes that the petitioner-son,

with approval of the petitioner-mother, his legal guardian, empowered an

attorney at law to file a constitutional complaint, and thus the formal

requirements for the constitutional complaint were met in the given

case.
 


III.
Facts of the case
 

9.

The Constitutional Court requested from the District Court for

Prague-West their file, No. 11 P 156/2007, from which the Constitutional

Court ascertained that the Department of Social and Medical Affairs of

the Černošice Municipal Office proposed, by a filing dated 19 September

2007, an imposition of institutional upbringing on the minor, this for

the minor’s repeated unexcused absence from school (since the third

year) under circumstances when the minor’s mother could no longer cope

with the minor. It must be added that the minor has been recorded in the

files of the body for social and legal protection of children since

2003, when, together with a friend of his, he set fire to a mobile

toilet. By a judgment of the District Court for Prague-West, file No. 11

Nc 126/2007-40, dated 22 October 2007, institutional upbringing of the

minor was imposed, and the mother was ordered to contribute to his

upkeep. The mother, who was present when the judgment was proclaimed,

waived (as did all parties present) the right to file an appeal, and

such a waiver was recorded in an official protocol. Yet, on 16 November

2007 she filed an appeal, which was then dismissed by a resolution of

the Regional Court in Prague, file No. 28 Co 859/2007-49 for subjective

inadmissibility. The institutional upbringing was then implemented by

way of a judicial execution of the decision on 11 January 2008. The

mother, by a filing dated 29 February 2008, proposed that the

institutional upbringing be invalidated. Such a petition was denied and,

upon an appeal filed by the mother, the judgment of the court of the

first instance was confirmed by a judgment of the court of appeal, which

was then contested by the constitutional complaint.

10. Taking

into account the arguments included in the constitutional complaint,

decisions in cases administered by the District Court for Prague-West,

file No. P 23/2002 and file No. P 70/2002, relating to proceedings

concerning imposition of institutional upbringing on other parties, were

also requested.
 


IV.
Recapitulation of subsequent statements
 

11.

Subsequently, the Regional Court in Prague was asked to give their

opinion on the constitutional complaint. The Regional Court stated that

in order to cancel the imposed institutional upbringing, it is necessary

to infer a significant change in circumstances. However, such a change

could not happen, be it solely for reasons of time, since the minor was

sent to the given institution in January 2008, and the contested

judgment was issued in May 2008. The Court stated that the interests of

the minor consisted of stabilising the upbringing measure effected under

circumstances when his mother failed in her duties as a parent, since

she did not manage to influence the minor, in terms of his upbringing,

in a desirable way as regards preparing him for his future occupation.

In the long term, the minor has shown no respect to anybody and began to

slip into a lifestyle of idleness, exhibiting no sense of

responsibility for himself, which was, especially with respect to his

age, particularly serious. The Regional Court also pointed out that the

mother had been previously sentenced due to a failure by herself which

led to a criminal act of endangering moral upbringing of children

pursuant to § 217 of the Criminal Act. The Court has thus proposed that

the constitutional complaint be denied, since the rights of the

petitioners were not violated in a manner gross and intense enough to

constitute a violation of their fundamental rights.

12. In a

reply to the above specified statement, the petitioners stated that the

institutional upbringing of the petitioner-son was cancelled in the

meantime following a judgment by the District Court for Prague-West

dated 16 January 2009. The petitioners, however, continued to insist on

the constitutional complaint filed, since the judgment dated 16 January

2009 constituted a modification in the verdict of the judgment on

imposition of an institutional upbringing, which was not contested by

the constitutional complaint. They insist on the constitutional

complaint filed in particular due to the fact that the institutional

upbringing was terminated since it no longer fulfilled the objective for

which the same had been ordered (the petitioner-son finished his

studies at the apprenticeship college), and not for reasons claimed by

the petitioners. The ordinary courts of both instances thus continue to

insist on their opinions, these being that they passed decisions in a

constitutionally conforming manner. That is why the petitioners propose

that the Judgment of the Constitutional Court, in addition to a

repealing verdict, also contain a declaratory verdict that the contested

judgment and proceedings prior to the same have violated the rights of

the petitioners defined under Art. 10, para. 2, and Art. 32, para. 1,

and para. 4 of the Charter, under Art. 8 of the Convention, and under

Art. 9, para. 1 and 2, and Art. 12 of the Convention on the Rights of

the Child. They deem the declaratory verdict to be desirable in order

for them to shed their feeling of being victims of a violation of

fundamental rights or basic freedoms.
 


V.
Actual evaluation
 

13.

As for the merits of the constitutional complaint, the Constitutional

Court wishes to preface that the Court is not a part of the system of

ordinary courts, and thus it is not its duty to examine the way in which

ordinary courts deal with the power defined by constitutional law to

make decisions in connection with the provision of protection to rights.

Consequently, the Constitutional Court is entitled to take on such

powers of the ordinary courts only in the case that their decisions (or

procedure prior to the same) constitute a violation of fundamental

rights and basic freedoms.

14. From the petitioners’ objections,

both in terms of procedure and merits, the Constitutional Court firstly

dealt with the issues of administration of the proceedings which

resulted in the issue of the contested decision. Specifically, the

objection that the petitioner-son was not heard at all within the

proceedings, even though, according to law, he should have been. Both

the ordinary court and the petitioners agree that the petitioner-son was

truly not heard by the court of justice.

15. The right of a

child to be heard in any proceedings in which a decision is to be passed

concerning the child’s matters is explicitly established, at the level

of instruments relating to human rights, under Art. 12, para. 2 of the

Convention on the Rights of the Child, under which a child shall be

provided the opportunity “to be heard in any judicial and administrative

proceedings affecting the child, either directly, or through a

representative or an appropriate body, in a manner consistent with the

procedural rules of national law”. Furthermore, Art. 3 of European

Convention on the Exercise of Children’s Rights establishes that a child

considered by internal law as having sufficient understanding, in the

case of proceedings before a judicial authority affecting them, shall be

granted the right to be consulted and express their views.

16.

Procedural rules of national law referred to by Art. 12, para. 2 of the

Convention on the Rights of the Child are contained in § 31, para. 3 of

the Family Act, according to which “a child who is capable, with respect

to the level of his or her development, of forming his or her own

opinion and evaluating the bearing of measures relating to him or her,

shall have the right … to be heard in any proceedings in which such

matters are decided upon”. At the time of the issue of the contested

decision, procedural rules were also contained in § 100, para. 3 of the

Civil Procedure Code, according to which “in proceedings to which a

minor is a party, such a child being able to formulate their own

opinions, the court shall proceed in such a way so that their opinion on

the matter is ascertained. The minor’s opinion shall be ascertained by

the court either via his or her guardian or the relevant body for social

and legal protection of children, or through examining the child.”

17.

The point in question here is the right of a child to freely express

their own opinion on all matters which affect them, which makes it

possible for a child (be it only to a certain degree) to balance his or

her unequal position in relation to parents, or possibly a guardian ad

litem. Due to this right, the court is better able to ascertain the

facts of a case and, in particular, may, when the court itself examines a

child, in a suitable way admonish the minor [§ 43, para. 1, clause a)

of the Family Act] and provide them with all necessary information prior

to taking any other measure concerning their upbringing under Head II,

Section II of the Family Act, that is, in an ideal case, this instead of

another measure concerning their upbringing. Even the court is a body

of the state, which as a whole has a positive commitment to act in such a

way that the relation between parents and a child may develop (Judgment

file No. II. ÚS 828/07, dated 10 October 2007 and others). That is why

upbringing measures separating a child from his or her parents are only

proper when the pursued objective cannot be achieved in any other way,

and must always be limited to a necessary period of time. The right to

be heard is important for the child in that it allows the child to sense

that they are not an object and passive observer of events, but an

important subject of rights (Kristková, V: Práva dítěte a procesní praxe

českých soudů /Rights of Children and Procedural Practice of Czech

Courts/ in Via iuris 2005, p. 73) as well as a party to the proceedings.

With respect to everything mentioned above, the right of a child to be

heard has clear separate worth among the fundamental procedural rights.

18.

With respect to the then valid domestic procedural rules (see clause

16), the right of a child to be heard under Art. 12, para. 2 of the

Convention on the Rights of the Child did not have the same meaning as

the right to be heard in accordance with Art. 6, para. 1 of the

Convention, as was inferred by settled decision making of the European

Court of Human Rights. This is given by the fact that, unlike the

latter, Art. 12, para. 2 of the Convention on the Rights of the Child,

and subsequently the domestic procedural rules, allow for a choice

between examining a child by a court and ascertaining the opinion of a

minor by way of his or her guardian or a body for social and legal

protection of children. With respect to the hierarchy of legal

regulation, according to which specifications of procedural rights and

obligations in civil proceedings are particularly contained in the Civil

Procedure Code, then § 31, para. 3 of the Family Act may not be

interpreted in such a way that there are no alternatives to the direct

examination of the child by a court. The said provision of the Civil

Procedure Code was established as late as 1 January 2001 by Act No.

30/2000 Coll., while the provision of the Family Act was established as

early as 1 August 1998 by Act No. 91/1998 Coll. Therefore, § 31, para. 3

of the Family Act may not be viewed from the aspect of posteriority or,

with respect to its general meaning also permitting regulations of the

Civil Procedure Code within the period under consideration, from an

aspect of speciality.

19. Nevertheless, uprooting a child from

the existing family environment represents not only an infringement of

private and family life, but also, to some degree, an infringement of

private freedom. This is certain in a situation when a child does not

agree with their removal from the family environment, and it is

irrelevant to which degree the family environment is beneficial for the

interests of the child, and these interests must be privileged by the

state. In any case, the child is uprooted from an environment in which

they are used to living and expressing themself, and it is possible to

expect that they will have an interest in continuing to live and develop

in such an environment. Thus, for the child, the family environment is a

space of freedom and, therefore, no other environment may be considered

a space of personal freedom for the child. The latter is especially

true for facilities established by the bodies of public power, in

particular institutional facilities, which (necessarily) have their own

way of operating that is (in accordance with the law) enforced upon

their residents. It is essential that in a case of infringement of

personal freedom, there is a general fundamental right to be heard

before a court which makes a decision on the limitations of freedom, and

this at any time such decision making takes place (file No. Pl. ÚS

45/04, N 60/36 SbNU 647; judgment of the European Court of Human Rights

in the case of Husák v. the Czech Republic No. 19970/04, dated 4

December 2008 and others). In principle, there is no reason for a child

not to have the fundamental right to be heard directly before a court

when a decision is being passed on restricting their personal freedom

whilst an adult has such a right in the same circumstances. A relevant

reason for denying the right of a child to be heard surely occurs when

the child is not capable, with respect to the level of their

development, of forming an opinion and evaluating the bearing of the

measures relating to them. When taking into account the specific

situation (see file No. III. ÚS 495/03, N 117/34 SbNU 223), it is

necessary to proceed from the fact that a man matures, in terms of

intelligence, between the ages of 11 and 12 (Piaget, J.: Psychologie

inteligence /Psychology of Intelligence/. Prague: Státní pedagogické

nakladatelství /Educational Publishing House/, 1970. pp. 105-128), and

peak performance is seen at 16 years of age. In any case, prior to

achieving the necessary level of development, this right is not granted

to a child by any instrument relating to human rights, as was explained

above (clause 15). Therefore, in the case of decision making on imposing

institutional upbringing on a child older than 12 years of age, there

is in principle no reason for denying the right of a child to be heard

directly by a court. Thus, alternatives provided by law were always to

be considered as exceptions which must be properly substantiated by the

court in its decision.

20. Besides, with effectiveness from 1

October 2008, § 100, para. 3 of the Civil Procedure Code was amended by

Act No. 295/2008 Coll. so according to the now valid § 100, para. 4 of

the Civil Procedure Code, a court shall ascertain the opinion of a minor

by examining them and, in exceptional cases, may ascertain such an

opinion via the child’s guardian, through expert opinion or the relevant

body for social and legal protection of children. The explanatory

report commented on such a modification as being a specification of the

present wording, with the priority option for ascertaining a child’s

opinion via examining him or her. According to this explanatory report,

such exceptional cases consist, in particular, of situations when a

court has ascertained that a child is not capable of formulating their

own opinions and that their presence at judicial proceedings would

evidently have no procedural importance or could be detrimental to the

child. Therefore, it may be concluded that the regulation valid at

present is truly a mere specification of duties which pertained to

ordinary courts at even an earlier date.

21. In the case under

consideration, the ordinary court was thus obliged to allow the

petitioner-son, with respect to his intellectual development, to

exercise his right to be heard directly before the court, and should not

have settled for merely a statement that the petitioner-son’s opinion

was known to the court, which is what actually took place.

22.

Therefore, the Constitutional Court has completely granted the

constitutional complaint, since the ordinary court, by not hearing the

petitioner-son, violated his fundamental right to judicial protection

pursuant to Art. 36, para. 1 of the Charter, in connection with Art. 12,

para. 2 of the Convention on the Rights of the Child, Art. 3, clause b)

of the European Convention on the Exercise of Children’s Rights, and

Art. 8, para. 1 and Art. 10, para. 2 of the Charter. Consequently, the

contested decision of the ordinary court has been annulled.
 


VI.
Accessories
 

23.

The conclusions which led the Constitutional Court to take their

decision relate to the petitioner-son in particular. However, they may –

with respect to family relations between the petitioners, and to the

importance of the decision for the petitioner-mother – mutatis mutandis

be applied also to her. That is why the constitutional complaint has

been granted also in relation to the petitioner-mother.

24. Since

the conclusion on the objection that the petitioner-son was not heard

by the court was the reason for granting the constitutional complaint

and for annulling the contested decision of the ordinary court, the

Constitutional Court has not dealt with the other objections of the

petitioners. Assessing such objections would not be able to change

anything in the conclusion adopted.

25. The contested decision

may remain manifest within the legal sphere of the petitioners, be it

due to the petitioners feeling like victims, as they state, or with

respect to possible other proceedings administered by bodies of public

power against the petitioners, or for other reasons, and, therefore, it

is irrelevant that the institutional upbringing of the petitioner-son

has ceased (cf. Opinion Pl. ÚS -st. 25/08 dated 6 May 2008).

26.

Specification of which constitutionally guaranteed right or freedom were

violated, and which action of the bodies of public power caused such a

violation, forms part of the Judgment even without any petition to such

an effect (pursuant to § 82, para. 2 clause a) of the Act). In the case

under consideration this was fulfilled in clause 22 of the Reasoning,

which cannot be considered to be inconsistent with the settled decision

making process of the Constitutional Court.

27. It was not

expectable that an oral hearing would bring about any further

clarification of the matter and, therefore, the Constitutional Court, in

accordance with § 44, para. 2 of the Act, dispensed with an oral

hearing.

Note: Decisions of the Constitutional Court cannot be appealed.