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In The Case Of The Proposal On The Voicing Of The Unconstitutionality Of Section 72 Of The Family.

Original Language Title: ve věci návrhu na vyslovení protiústavnosti části § 72 z. o rodině

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44/2016 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL-10/15 of 19 March 2001. November 2015 at

the plenary consisting of the President of the Court, Pavel Rychetský and judges Louis

David, Jaroslav Fenyka, Jan Filip, Jaromír Jirsy, Vladimir Crust,

Tomas Too (the judge rapporteur), Jan Musil, Vladimir Sládečka,

Radovan Suchánka, Catherine Šimáčkové, Vojtěch Šimíčka, Milady

Tomková, David, Uhlir, and George Zemánka of the Senate's Constitutional proposal I.

the Court on the unconstitutionality of section 72, paragraph voicing. 1 the first sentence of the law No.

94/1963 Coll., on the family, with the participation of the Chamber of Deputies and the Senate

The Parliament of the Czech Republic as the parties to the proceedings and the Government of the Czech

of the Republic, as intervener,



as follows:



The proposal is rejected.



Justification:



1. On 12 December 2003. 10. The Constitutional Court has received the 2014 constitutional complaint l. p. (

"the complainant") of the opposing party, the violation of his fundamental rights in the proceedings,

in which the courts have rejected his proposal on the adoption of his son cancellable

mate (also referred to as "minor") on the grounds that such adoption

Act No. 94/1963 Coll., on the family, as amended, (hereinafter referred to as

"family law") does not allow.



2. the Senate of the Constitutional Court, which has been a complaint according to the schedule of work

granted, pursuant to the provisions of section 78, paragraph. 2 Act No. 182/1993 Coll., on the

The Constitutional Court, as amended by Act No. 48/2002 Coll. (hereinafter referred to as "the law of

The Constitutional Court ") resolution SP. zn. I. ÚS 3283/14 of 14 May. 4.

2015 constitutional complaints and interrupted the proposal made by the plenum of the Constitutional

on the contrary the Court saying the provisions of section 72, paragraph. 1 the first sentence of the law on

the family with the constitutional order.



(I).



The definition of the case and the previous conduct of the procedure



3. The complainant on 22. 4. The District Court in Cheb 2013 proposal for a

adoption of the son of his companion, who is now 13 years old. The complainant with the companion

He lives in a stable volume is already over ten years.



4. From the report of the municipal office in the city as a body of social and legal protection

the children, who was a General in the proceedings before the courts of the guardian of a minor,

drawn up at the request of the District Court, it appears that the complainant lived in the

a common household with the child's mother, a minor, and the next child that

has, together with the mother of the minor. The biological father of a minor

care and maintenance do not apply. Minor confirmed that intercountry adoption is its

the express wish, because the complainant, since it considers your

father. Therefore, he wants to make the complainant was like his father to be written in the native

sheet, and he wants to have with the complainant and his brother polorodým the same

last name. The mother of the minor stated that the proposal was filed, mainly at the instigation of

the minor. The guardian also contacted the legal father of a minor,

that the proposal tentatively agreed. Guardian to

the consent of all stakeholders recommended that the Court proposal

meet the. The judgment of said District Court No. 18 Nc 1055/2013-9

day 16. 8.2013, it was determined that for the lack of interest of the father need not be his

consent to the adoption of a minor by R.



5. Judgement No. 18 Nc 1054/2013-56 of 12 December. 12.13 the District Court

proposal on intercountry adoption. Of the evidence, the District Court found that the

the complainant is eligible for adoption, the father of a son too interested and

maintenance does not apply. Minor comment before the Court so that he wants to stay

with the complainant, which appeals to "Dad", and wants to appoint him.

According to the District Court have been fulfilled some of the conditions for adoption,

but not the condition that as common child can someone learn just

the spouses, as set out in section 66 paragraph. 1 of the Act on the family. According to the opinion of the

the District Court law does not give the option of adoption in the present case, when

It's not about mastering the lonely person in the sense that an adoptive parent was

in fact, a single parent, but on the contrary, the complainant would replace only

the relationship of the father, while the parental relationship mother would remain. It does not change anything

not even a form of adoption, as the statutory provisions in question relate to the adoption

in General, moreover, is referred to indirectly supported the conclusion and the provisions on the

the new last name of the child, which shall bear the surname of the adoptive parent, if it is

the lonely person, or of the common children of the spouses last name, on which these

agreed, if the adopted child is the husband's mother.



6. Against the above, the judgment of the District Court handed the complainant

the appeal. To the conduct of the Court of appeal were the complainant and mother

minor duly summoned, but for business reasons to excuse.

The Court of appeal did not participate in the negotiations or the guardian of a minor,

that left the decision on the appeal to the discretion of the Court. The District Court in

Pilsen then by its judgment No. 56 What 65/2014-72 of 24 April. 6.2014

the first instance decision confirmed as identified with the legal opinion

the District Court.



7. The Constitutional Court to the query, why not close with her mother the marriage or whether

tried to change the surname of the minor, the complainant stated that the conclusion of the

or the absence of a marriage is just their law. For a change of surname

sought, but Hall of the Office were told that without the consent of the

biological father cannot be change.



8. the first Chamber of the Constitutional Court took the view that the constitutional complaints

the contested decision of the General Court appears as violative of the right to

the complainant, for the protection of family life, guaranteed by article. 10, paragraph 1. 2

The Charter of fundamental rights and freedoms (the "Charter"), and also as

contradictory to the article. 3 (3). 1 of the Convention on the rights of the child, according to which "interest

the child must be a primary consideration in any activity relating to the

children, whether undertaken by public or private establishments, social

health care, courts, administrative or legislative authorities. " At the same time, however, according to the

I. the Senate Constitutional Court constitutional complaint was not possible without further

meet, as the General Courts Act, in accordance with the provisions of § 72

paragraph. 1 the first sentence of the Act on the family, adoption of a child in a mate

as a result. According to this provision, "acquiring a mutual cease

rights and obligations between or her adopted child and the original family ". In the case of

the adoption of a minor by the complainant would become devoid of legal relationship between the

the minor and his mother, which on the one hand the complainant nor does not require and

It would be contrary to the interests and rights of the minor and his mother. The Senate

Therefore, the Constitutional Court cited provisions of the law on the family considers it

inconsistent with article. 10, paragraph 1. 2 of the Charter and article. 3 (3). 1 of the Convention on the rights of

of the child. In doing so, he took into account that the doktrinární work and komentářová

literature from the beginning of the effectiveness of family law support the interpretation that the

adoption of a child is only possible for the partner of the existence of the marriage (see

for example. Češka, Z.. Czechoslovak family law. Prague: Panorama,

1985, p. 154; Hrušáková, m. and Kachappilly, from Czech family law. Brno:

Masaryk University, Faculty of law, 1998, p. 237; or Dvorak, j.,

Plum, j. and wheels. Civil substantive law 3. Prague: Wolters Kluwer,

2009, p. 110). Therefore, I appeal to the proposal made by the plenary of the Constitutional Court

the implementation of the provisions of section 72, paragraph. 1 the first sentence of the law on the family was in

contrary to the constitutional order.



II.



Arguments of the parties



9. The Chamber of deputies of the Parliament of the Czech Republic in its comments

simply stated, the contested provisions of the law on the family, already contained

the Government's proposal of the Act of 1963, which was duly approved by the then

The National Assembly on 4 July 2003. 12.1963. Since it was not contested

the provisions of the amendment.



10. the Senate of the Parliament of the Czech Republic stated that the contested

the provisions of the original text was already part of the family law of the year

1963, implying that his approval was not a participant. At the same time

stated that the proposal was not the question raised in the Senate, subject to

discussion even when discussing the novel family law, even when the

discussion of the new civil code.



11. the Government in its comments on the draft pointed out some of the context

the proposal and the relevant decision of the European Court of human rights

(hereinafter "ECHR") and Summit of national courts of some European

countries. It pointed out that in the area of adoption of the other parent (called.

second-parent adoption) there is no uniform practice in Europe, as part of the

States allowing adoption of companion parents, while other States

This kind of adoption reserve married couples. In this context, the

the Government also referred to the case of the revised European Convention on the adoption of children.

The alleged unconstitutionality of the contested provisions of the family law

the Government took a neutral position, knowing that this is an extremely

a sensitive topic that can have an impact on the perception of the traditional social

and family ties.



12. In the case of compliance with the proposal, according to the Government, it was necessary to resolve several

questions. Allow the adoption of companion or mate, parents of a child without conditions

marriage opens up questions related to the quality of the relationship, which is not

"supported by" an existing marriage. It would be necessary to solve, how it will be

assessed the sustainability and stability of the relationship of parents and his companion to

verified that the child gets the necessary support and will not be issued in the near future

further downward pressure in the form of separation of parents and his companion. The Government pointed out,

that is now a discussion about allowing the adoption of the second parent of the unmarried

couples in Switzerland and within it are asked questions determining the minimum

the length of the existence of the relationship between parent and child, or a kind of companion and or

the method of proof of the length of the leadership of the common household.



13. The public protector of rights into the proceedings decided not to move.



III.



Evaluation of the Constitutional Court



And constitutional conformity of the legislative process



14. In accordance with the provisions of section 68, paragraph. 2 of the law on the Constitutional Court finds

The Constitutional Court in proceedings for the annulment of laws and other legal provisions, whether

the contested act (or other law) was adopted and published in the limits of the

The Constitution of the Czech Republic set out competences and constitutionally prescribed

in a way. The contested provision was part of the original text of the law on

the family from 1963, and since then, the text underwent no

changes. Assessment of the legislative process, would therefore mean to judge

compliance with the constitutional provisions in force already expired at the time of the adoption of the

the law. On the basis of the provisions of section 66 paragraph. 2 of the law on the Constitutional Court,

According to the proposal, which is inadmissible if the constitutional law with which it is


According to the proposal under review regulation in the conflict, before delivery

the design of the validity of the Constitutional Court, the Constitutional Court States that in the case of

laws issued prior to the entry into force of the Constitution of the Czech

Republic (hereinafter referred to as "the Constitution") on 1 July. 1. the 1993 is authorised to review the

only their content, compliance with the existing constitutional order, not

However, the constitutionality of the procedure of their creation and compliance with regulatory

competence. For this reason, the Constitutional Court could not examine referred

procedure or, in this case [see consistently find SP. zn. PL. ÚS 15/09 dated

8.7. 2010 (139/141 58 SbNU; 244/2010 Sb.), point 22].



(B). The admissibility of the proposal



15. The Constitutional Court of the introduction States that the proposal and the Senate considered brought on

authorized body and permissible.



16. In accordance with the provisions of section 78, paragraph. 2 of the law on the Constitutional Court, if

the Senate in connection with the decision of the constitutional complaint concluded that

individual provisions of the Act, which occurred,

that is the subject of the constitutional complaint, are in contradiction with the constitutional

by law, the proceedings and shall submit a proposal to the plenary on the abolition of such legal

the regulation referred to in article. paragraph 87. 1 (a). and) of the Constitution.



17. Such a procedure does not prevent, if the law had already expired. In

finding SP. zn. PL. ÚS 33/2000 of 10 November 2000. 1.2001 (N 5/21 SbNU 29;

78/2001 Coll.) The Constitutional Court ruled that, in the case of specific checks

standards, that is no longer valid, the proposal of the General Court

According to the article. paragraph 95. 2 of the Constitution cannot be applied to the provisions of sections 66 and 67 of the law

the Constitutional Court, but the article itself. paragraph 95. 2, or article. paragraph 95. 1

The Constitution, under which a judge of the General Court is not entitled to review

the compliance of the law with the constitutional order. This case-law was last

confirmed in the award SP. zn. PL. ÚS 41/10 of 17 February. 9.13 (N 164/70

SbNU 525; 466/2013 Sb.), point 22. The same conclusion must reach, and

If the opinion on the unconstitutionality of the provisions already invalid, but in the

the things applied the law reaches the Senate Constitutional Court when deciding

on the constitutional complaint, since neither one is not entitled to pronounce himself the inconsistency

of the law with the constitutional order. This power belongs only to the plenum of the Constitutional

of the Court.



C. legislation and general principles relevant in the case



18. The whole of the provisions of section 72 of the Act on the family, of which the first sentence of paragraph 2

is assessed, as follows:



"(1) Adoption shall cease the mutual rights and obligations between or her adopted child and

the original family. Also cease the rights and obligations of the guardian,

where appropriate, the guardian, who was appointed to the parents of these rights and

the duties performed.



(2) If an adoptive parent of the adopted child and her husband of one of the parents, shall not affect the

adoption of the relations between a parent or her adopted child and that his relatives. "



From the 1. 1.2014 is this provision replaced by the provision of section 833 of the law No.

89/2012 Coll., the civil code, which reads as follows:



"(1) the adoption extinguishes the relationship between or her adopted child and the original

the family, as well as the rights and obligations arising from this relationship.

Also cease the rights and obligations of the guardian, or custodian,

who was appointed to the parents of these rights and duties performed.



(2) If an adoptive parent of the adopted child and her husband of one of the parents, shall not affect the

adoption of the ratio between this or her adopted child and parent and its

relatives, or the rights and obligations arising from this contract. "



19. The adoption of children, in particular affecting the two international agreements, which is

Czech Republic is bound. The first of these is the Convention on protection of children and

cooperation in respect of intercountry adoption, adopted 29 July. 5. in 1993 in the Hague,

which was announced under the number 43/2000 Sb. m. s. in The your

Chapter II General lays down the conditions of adoption, but the questions of adoption

the other parent is not without prejudice. More detailed conditions for intercountry adoption regulates

The European Convention on the adoption of children adopted on 24. 4. the 1967 in Strasbourg,

that was published under no. 132/2000 Sb. m. s. In its article 10

paragraph. 2 provides that the adoption of any rights and obligations of the same species

existing between his or her adopted child and the father or mother or any

person or body will cease to exist. However, the law may establish,

the husband (wife) adopters will retain their rights and obligations in

relation to the osvojenci, if that is her married, nemanželským

or the adopted child. In the revised European Convention on the adoption of children

adopted on 27. 11. the provisions of article 2008 in Strasbourg. 7. 2

acknowledges that the Contracting States may extend the scope of this Convention and on the

heterosexual couples who live together in a stable relationship.

The provisions of the article. 11. 2 may stipulate that the relationships between the parent, which is

partner of the adopter, and the osvojovaným child should remain

preserved, whether their relationship was registered or not, but with

condition, unless the law otherwise. The revised Convention has not yet

the Czech Republic has not been ratified.



20. The ECHR HAS already repeatedly dealt with the adoption of the child by the other (social)

a parent who has a child with a social link with the

parental-bound. It was, however, the cases in which the courts of the adoption

permit, or on the adoption of homosexual couples. For the Constitutional Court

one thing you can probably be considered as essential the decision of the Grand Chamber

in case X and another against Austria of 19 December. 2.13 no 19010/07. In the section

136 of this decision of the ECHR HAS pointed out that article. 8 of the European Convention on

the protection of human rights and fundamental freedoms does not oblige Member States to

the extension of the law on the adoption of the other parent to couples that have not concluded

marriage. He left and on its previous case-law, where said

the same conclusions (decisions on Gas and Dubois against France, of 15 July.

3.2012 no 25951/07, section 66 to 69, and the decision in the matter of Emonet and others

against Switzerland, of 13 February. 12.2007 no 39051/03, section 79 to 88).



21. The Constitutional Court had already dealt with several times by the adoption,

but always in a completely different context. This was especially the case

the adoption, in which the General, the Court said that the adoption of a child is not to be

the consent of his parents. However, the Constitutional Court has not yet had the opportunity to deal with the

the question of adoption of a child, or a kind of companion to one of the parents, in which

to be replaced or complemented by only the second parent, and where was the relationship

or her adopted child and the adoptive parent in between (the so-called social parent). This kind of

adoption of the Constitutional Court also refer to as "the adoption of the second

the parent "(the English translation of the commonly used the term" second-parent

adoption ").



22. Between the child (potential or her adopted child) and the social parent

(a potential adoptive parent) already exists as a rule, family life. The right to

on the protection of the family life of the protected article. 10, paragraph 1. 2 of the Charter of the

a wide range of legal relations. The Constitutional Court recognizes that the nature of the relationship

between parents and children is not primarily legal. Based on the case-law of

ECHR, according to which, under the definition of family life, according to the article. 8 the Convention on

the protection of human rights and fundamental freedoms (hereinafter referred to as the "European Convention")

fall and factual relationships between persons who are long-term and permanent,

without formally it was a relationship of kinship or marriage or relationships

formally recognized by the State.



23. The Constitutional Court also emphasises the need to take into account the long term

the best interests of the child in any activity relating to the child,

including judicial decisions [see e.g. find SP. zn. PL. ÚS 23/02 of

30 March. 6.2004 (N 89/33 SbNU 353; 476/2004 Sb.); find SP. zn. Pl. ÚS

15/09 of 8 May. 7.2010 (139/141 58 SbNU; 244/2010 Sb.), point 29;

find SP. zn. IV. TC 3305/13 of 15 April. 10.2014; find SP. zn. I. ÚS

1506/13 of 30 June. 5.2014 (N 110/73 SbNU 739); or find SP. zn. III.

TC 3363/10 of 13 May. 7.2011 (N 131/62 SbNU 59)]. This obligation

It follows from article. 3 (3). 1 of the Convention on the rights of the child (No. 104/1991 Coll.),

According to which the best interests of the child shall be a primary consideration when

any activity concerning children, whether undertaken by public or

private establishments, social services, courts, administrative or

the legislative authorities.



24. In section 68 of the above-cited decision in the matter of Gas and Dubois against

France, ECHR HAS noted that in the past has said that marriage confers

those who have concluded a specific status. Performance rights to close

marriage is protected by article. 12 of the European Convention and carries social,

personal and legal consequences.



25. The Czech legal order in accordance with the above provides marriage

the specific status of distinguishing it from the cohabitation of unmarried couples.

Family law devoted marriage right provisions § 1. The civil code

begins the second part of the family law provisions on virtually the same

marriage (para. 655). As examples of the specific status of the marriage can be

family law recalled the mutual obligation of spouses (section 91

family law, section 697 of the Civil Code), even divorced

spouses (section 93 family law, section 760 et seq. of the Civil Code),

the possibility of representation of the spouses (article 21 of the law on the family, art. 696

of the Civil Code), the first presumption of paternity (§ 51 family law, section

776 of the Civil Code) and a special mode of the divorce decree requiring

the fulfilment of several conditions (section 24 et seq. of the family law, section 755 et seq..

of the Civil Code). Husband is unlike the unmarried companion

priority in the inheritance law, and it's inclusion in the first group

(class) the heirs (art. 473 of Act No. 40/1964 Coll., the civil code, the effective

until 31 December 2006. 12.13-hereinafter referred to as "identity. Cust. "§ 1635 of the Civil Code).

A completely special arrangements are subject to the property relations of spouses (art. 143 et seq..

of his/her identity. Act § 708 et seq.. of the Civil Code). Also the rental relations

the spouses to the apartment were and are adjusted separately (section 703 et seq. of his/her identity.

Act § 743 et seq.. and § 766 et seq.. of the Civil Code).



26. However, the Constitutional Court shall be considered in relation to the matter under consideration for

more important, it is the legislation providing for the child's position in the case of

breakdown of his parents ' relationship. The provisions of section 25 and 26 of the Act on the family

ensure that the marriage cannot be dissolved beforehand, until they are judicially

regulated the rights and obligations of parents to minor for a period after

divorce. A similar adjustment is now in section 755, paragraph. 3 and section 906 of the civil


code. Family law in its article 50 and the civil code in the

the provisions of § 908, the possibility of the Court to decide without the proposal of

adjusting the ratios of the child if the parents do not live together, and if they fail.



(D) the application of general principles to the present case now



27. First, the Constitutional Court had to deal with the possibilities of such a constitutionally

consistent interpretation of the contested provisions, which would allow for the eventual

adoption of the other parent and for unmarried couples. The text of the provisions of § 72

the law on the family, however, is unique. To the demise of the mutual rights and

obligations between or her adopted child and the original family (or one of the parents)

does not occur solely in the case of an adoptive parent, if the husband of one of the parents

of the adopted child. Another interpretation would be completely contrary to the express wording of the

the law.



28. As already indicated above, the Constitutional Court was the Senate.

confronted with situations in which authorisation in favour of adoption of the second

parent child relationship quality concluded between him and the kind of mother as

the social quality of the biological parent, the relationship of mother and social parents

reaching adoption (a ten-year relationship pečetěný the common child)

I clearly expressed the wishes of the child and its interest in having a father who is a

him and secures it (unlike the biological father

neprojevujícího interest of the child). Therefore, the proposal and Senate attacked

the constitutionality of past (and present) adaptation of the second parent adoption in

If the adoptive parent is not the husband of one of the parents, but only its

species or companion. Such adoption is theoretically possible, but in the

the matrix is the deletion of both the child's biological parents, partner or

companions of the adopter.



29. Argumentation and Senate Constitutional Court lies mainly in the fact that

the contested provisions of the Act does not allow for individually to assess the best

the interest of the child. Does not replace the dysfunctional parents parent functioning.

Thus the rights of the complainant on the protection of family life (article 10 of the

paragraph. 2 of the Charter) and is also in breach of article. 3 (3). 1 of the Convention on the rights of

of the child.



30. As is clear from paragraphs 19 and 20 of this award, the international treaty and

the decision-making practice of the ECHR (see the above-cited decision in matters of X and

another against Austria, Gas and Dubois against France and another against Emonet and

Switzerland) fully respect the right of individual States to adopt such

adjustment of the acquisition, which is subject to an assessment of the Constitutional right now

by the Court. Especially the ECHR HAS repeatedly said the legislation,

that does not allow the adoption of the other parent with unmarried couples cannot be

viewed as interference in family life.



31. the reason for the exclusive possibility of acquiring the other parent only

the case of married couples can be treated as a request to the stability of the

the partner relation that has the offer even higher stability guarantee

educational environment for a child. Surely such a requirement follows the best

the interest of the child. There is, however, the question of whether a marriage is still a

the guarantee of a stable relationship. Whether this requirement may justify

in case of adoption of legislation.



32. Family law was adopted in 1963 when the divorce rate was

less than 20% of the (possible, Family and society. Prague: Elephant, 2006, s.

267). In 2013 was already 49% (statistics and we, no. 10/13).

The common life of partners without formal marriage becomes in

the company still more. According to the Czech Statistical Office 11

% of Czech full families in 2011 was the so-called de facto, or

formally the unbalanced marriage (Statistic and we, No 7-8/2013). Is

clearly, rising rozvodovostí decreases the stability of marriage. About

the stability and duration of cohabitation of unmarried couples, however, the statistical data

meet. Therefore, you cannot compare the stability of conjugal cohabitation, where we have to

available unique data co-existence without any formalities and without

any evidence. This was based and the legislature when adopting the

of the civil code. He was accepted in the year 2012 and in the explanatory memorandum is

expressly stated: "the permanence of marriage is to be understood as an absolutely

required attribute that distinguishes the marriage (in addition to the statutory regulations) from the

conditions or circumstances which are considered as short-term,

transient. " (The Chamber of deputies of the Czech Parliament; explanatory memorandum

message to § 655 Act No. 89/2012 Coll., the civil code, the print house

362/0).



33. The Constitutional Court is far from certain, however, to determine the extent to which people

the volume together to live. It is certainly the right of each individual. In this

the case is, however, necessary to consider whether the idea that marriage provides a guarantee

the permanent cohabitation of men and women and that provides greater protection to the child

(sure), can justify the contested legislation. On the one hand here

is steam, which felt their will formalizovaným live

permanently together and undergo special legal regime of incoming on

marriage-see paragraph 25 of this award. And it's not just about benefits.

Marriage can be a divorce only by judicial decision, the Court must decide even

the proportions of the child at the time after the divorce of the spouses (see paragraph 26), divorce

i need to accompany the securities settlement, etc. On the other hand, is

couples with no nepodřídily mode. And as is clear from paragraph 26 of the

This award provides a higher level of security to a child of the marriage. When

every divorce decree must be decided by the Court (even if only

approval of the agreement of the parents), who will continue to take care of the child and how will

ensure his nutrition. In doing so, the Court must be based on the best interests of the

of the child. By contrast, when the breakup of unmarried parents the Court about these

circumstances of the child decides on the proposal practically. Although the Court may control

launch itself, but first on the need for such adjustments must learn. In

the practice can occur and are there situations when after a breakup

parents receive a child inappropriately low and, where appropriate, any maintenance.



E. Conclusion



34. On the basis of the above, the Constitutional Court came to the conclusion that the challenged

Although the law provides for restrictions for unmarried couples, but this restriction

is sufficiently justified prerequisite for higher rates of marital stability

pairs and in particular better ensuring the conditions of the child, when their

the coexistence of his parents. This edit therefore pursues the best interest of the child.



35. Referring to the Constitutional Court and argued the Senate intervention in

family life. Even here, the Constitutional Court did not find the case of legal

adjustment for rozpornou with article 10, paragraph 1. 2 of the Charter. In the specific case

the complainant, the Constitutional Court will approach other solutions the status of a minor

the child allowing to achieve similar results as in the case of adoption. To

the coexistence of the complainant's family, no one does not interfere. It is obvious that not

Neither the biological father of the child, who doesn't care about them. In the case of fear of

his intervention was, and it is possible to take advantage of the limits of parental responsibility (§

paragraph 44. 2 of the Act on the family and § 870 of the Civil Code). If wishes

the child (and perhaps the main motivation for the adoption) bear the same last name as the

other family members, such changes can be achieved even without the consent of the

the biological father, whose agreement replaces the Court (section 49 of the Act on the family and the section

877 of the Civil Code). This option, however, the family of the complainant or

attempted use. While you can assume her success, when the Court has already

been decided that even do not need the consent of the father with the adoption.

Rather, it can be assumed that the consent of the Court with the change of surname. The law therefore

provided and still provides for a minor child, and his de facto family

tools for the coexistence of the family and the fulfillment of wishes of the child. Again, it is

should be recalled that the right to acquire and right to be osvojen is not a basic

the law protected the constitutional order or the international treaties.



36. The Constitutional Court thus concluded that the challenged legislation is not in

contrary to the article. 10, paragraph 1. 2 of the Charter, nor with article 3, paragraph 3. 1 the Convention on the

rights of the child. To change this edit and any other permit adoption

the parent of the unmarried couple are fully within the competence of the legislature. Here is the

appropriate quote from the favourable opinion of judge Costa, to which the

He joined the judge Spielmann in the abovementioned decision in the matter of Gas and

Dubois against France: "... There are areas in which the national

the legislature better than European judge had to changed

the institutes that touch on family, relationships between adults and children, or

the concept of marriage. " The Constitutional Court is of the same opinion. Because the Constitutional Court

did not find your proposal and Senate reason, in accordance with the provisions of section 70

paragraph. 2 Act No. 182/1993 Coll., on the Constitutional Court, rejected it.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the judges took the decision of plenum

Vladimír Suchánek Sládeček, Radovan and Catherine Simackova.