In The Matter Of A Proposal For The Repeal Of Section 46 Of The Act On The Family No. 94/1963 Coll.

Original Language Title: ve věci návrhu na zrušení § 46 zákona o rodině č. 94/1963 Sb.

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72/1995 Sb.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided to 28 June. March 1995 in the plenum in the

things application along with constitutional complaints from n. apartment B. H., 81

represented by a lawyer. In m.., based in (B), on the repeal of section 46

family law No. 94/1963 Coll., section 19, paragraph. 1 (a). and no. 1 of the law), the Czech

the National Council No. 114/1988 Coll., on the scope of the authorities of the Czech Socialist

Republic in social security, and section 15 of the Decree of the Ministry of labour and

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

the social security law and the law of the Czech National Council on the scope of the

the authorities of the Czech Republic in social security, with the participation of the

the Chamber of deputies of the Parliament of the Czech Republic



as follows:



On 1 January 2005. October 1995 shall be repealed



1. the provisions of section 46 of the Act on the family no. 94/1963 Coll., as amended,



2. the provisions of section 19, paragraph. 1 (a). and no. 1 of the law), the Czech National Council No.

114/1988 Coll., on the scope of the authorities of the Czech Socialist Republic

social security, as amended,



3. the provisions of section 15 of the Ordinance of the Ministry of labour and Social Affairs of the Czech

No. 182/1991 Coll., implementing the law on the social

Security and the law of the Czech National Council on the competence of the authorities of the Czech

Republic in social security, as amended.



Justification:



The complainant Zdeněk Novotný on 16. 2. the 1994 Constitutional Court of the Czech

of the Republic, the constitutional complaint against the resolutions of the regional court in Brno from the day

29.11. in 1993, which was rejected his appeal in the judgment of the city

the Court in Brno from day 2. 8.1993, and along with being handed a proposal to repeal

the above provisions of the legislation in that range. On

based on the proceedings of the constitutional complaint, the Senate suspended and proposal

the cancellation provisions of both laws and the implementing regulation was sent to the

to the decision of the plenum of the Constitutional Court under section 78, paragraph. 1 of law No.

182/1993 Coll., on the Constitutional Court.



To the justification of the proposal, the complainant stated that the decision on the preliminary

measures, issued by the Office of the municipal part Brno-Černovice in 1991,

It was decided to position his son to institutional care. The complainant is

against the prior measures appealed, the appellate body--the Office of the city of Brno,

the Department of Social Affairs, the appeal failed. Also, the Criminal Court, which in

connection with these decisions ruled in 1993 for violations of the

the obligation of the father to pay ošetřovné for the duration of the stay in institutional care,

disregarding the objections of the complainant, that the decisions have been violated

the rights of the complainant and his child, since the Charter of fundamental rights and

freedoms, in its article 32, paragraph. 4 provides that the rights of parents may be

limited and the children from their parents against their will just excluded by decision of the

the Court, on the basis of the law. Similar provision also contains the article. 9 (2). 1

The Convention on the rights of the child. The cited provisions, according to the complainant, in

the time of the decision within the meaning of the provisions of § 2 of the then applicable constitutional

Act No. 23/1991 Coll. takes precedence over the law, even before the provision of section

46 family law No. 94/1963 Coll. and section 19, paragraph. 1 (a). and no. 1 of the law)

The CZECH NATIONAL COUNCIL No. 114/1988 Coll. and section 15 of the Ordinance of the Ministry of labour and social

Affairs of the Czech Republic No. 182/1991 Coll., the States which are Contracting

the parties cited the Convention is to ensure that the child could not be

separated from their parents against their will, unless the competent authorities, on the

the basis of a court decision and in accordance with applicable law and in the relevant

proceedings to determine that such separation is in the interest of the child.



The Constitutional Court of the criminal judgment of the municipal court in Brno, in the

things SP. zn. 4 T 113/93 found that even when municipal court in Brno

He has done with the explicit reference to the provisions of section 46 of the Act No. 94/1963 Coll.,

was a General in the Court of the legal considerations, in particular as regards the

statement of the complainant, the content of this Bill. From this fact, then

The Constitutional Court ruled that the application for annulment of the Act No. 94/1963 Coll.,

as amended, as well as other parts of the Czech National Council Act No.

114/1988 Coll. and Decree of the Ministry of labour and Social Affairs No.

182/1991 Coll. are in close connection with the circumstances arising from the

stěžovatelovy the constitutional complaint, and that they are therefore so fulfilled the formal

the conditions for the examination of the application for annulment of the Act (section 74 of law No.

182/1993 Coll.).



The proposal was on 1. 11.1994 sent to party, IE. The Chamber of Deputies

House of Commons of the Parliament of the Czech Republic, with requests for representation within the meaning of section

69 of the law on the Constitutional Court. This statement was sent to the Constitutional Court

He no j. 3866/94 of 17 May. 11.1994. In the introduction contains the paper

the general finding of the exercise of parental rights and duties, which

subject to social control. As regards the discrepancy between the infected

the provisions of the said legislation and incorporated herein the provisions of the article.

paragraph 32. 4 of the Charter of fundamental rights and freedoms and article. 9 (2). 1 the Convention on the

rights of the child, it is stated in the paper that it was not considered that the contested

the three laws were not in conformity with the Constitution of the Czech Republic and with the

other legal provisions, and that it is necessary to continue to be part of the

the rule of law. Hence the suggestion that the Constitutional Court design

the complainant has not complied with.



The Constitutional Court on the basis of the proposal in the first place

focus on the comparison of the content of the contested provisions, designed to

the cancellation, in particular section 46 of Act No. 94/1963 Coll. (because of its legal

the adjustments are based on (i) the provisions of section 19 of Act No. 114/1988 Coll. and section 15

Decree No. 182/1991 Coll.), with the provisions of article content. paragraph 32. 4 of the Charter of

fundamental rights and freedoms. Restriction of parental rights and the separation of children from

parents can be according to the express wording of the Charter of fundamental rights and freedoms,

that is part of the constitutional order of the Czech Republic, in the case of

parents ' disapproval only by a court decision (and on the basis of the Act).

The text of the article. paragraph 32. 4 this instrument does not allow any doubts:

"The rights of parents may be limited and minor children may be from parents

isolated against their will only by a court decision on the basis of the law. "

Similarly, the protection of the child Specifies whether or not the Convention on the rights of the child, which

the State is obliged to ensure that nationally.



Therefore, if the Charter of fundamental rights and freedoms in that article,

provides that minor children may be excluded from their parents against their

will only by a court decision on the basis of the law, then the provisions of the law on

family (section 46 of Act No. 94/1963 Coll.), as well as the provisions of the law on

the scope of the authorities of the Czech Socialist Republic in social security

(section 19 of Act No. 114/1988 Coll.), the District National Committee (now the district

the Office is obliged to do so) in urgent cases, such preliminary

the measures, which otherwise has the right to decide only the Court, to which it

shall immediately notify the Court decides, with the addition, the Constitutional Court had to

to conclude, that those provisions are in contravention of the constitutional

by law within the meaning of section 70 of Act No. 182/1993 Coll., on the Constitutional Court, and

He had to cancel.



The Constitutional Court agreed with the opinion, contained in the representation of the

the Chamber of deputies of the Parliament of the Czech Republic, in the sense that it lacks a child

training in their own family environment, has legal claim to his

the State authorities to ensure their education in the environment of replacement custom

the family, including the constitutional education, if it is not possible to provide replacement

family care (section 46 of Act No. 94/1963 Coll.), so it is not only the law of the

These authorities take the necessary measures, which requires an interest in the protection of

the rights of the minor, but it's also their legal obligations.



The Constitutional Court, however, could not agree more with the statement that the scope of the privilege

State authorities and their powers, for example. in section 46 of the Act No. 94/1963 Coll.,

It is in accordance with the relevant norms of international law, because, as

above, came to the conclusion that this particular provision is in

inconsistent with the constitutional law of the Czech Republic. Therefore, he could not agree

with the other, claiming that the Court may decide on the immediate placement of a child

to the care of replacing education parents to retrospectively where the competent administrative

authority of its provisional measures for that location.



The above reasons are indicative for the annulment of the contested provisions

both cited laws, applies in the same range for the cancellation

the provisions of the implementing regulation, IE. section 15 of the Decree of the Ministry of labour and

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



The Constitutional Court, aware of the existence of urgent cases, when there is a need to be in

the child's interest to take the necessary steps without delay, pushing back the effectiveness

finding the 1. October 1995, to be carried out necessary organizational,

where appropriate, legislative measures to protect the interests of the child are implemented

in accordance with the Charter of fundamental rights and freedoms, which is part of the

the constitutional order of the Czech Republic, as well as with the International Convention on the

rights of the child, to which the Czech Republic is bound.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.

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