234/2016 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided under ref. Nos. Pl. US 7/15 of 14 June 2016
plenary Court composed of the Chairman Pavel Rychetsky and judges
Louis David, Jaroslav FENYK, Josef Fiala, Jan Filip, Jaromir Jirsa,
Tomas Lichovník, Jan Musil, Vladimir Sládečka, Radovan Suchanek, Šimáčková
Catherine, St. Adalbert Šimíček (rapporteur), David Uhlir
and Jiri Zemanek on the proposal of the Municipal court in Prague to annul § 13 para. 2
Act no. 115/2006 Coll. , on registered partnership
and amending certain related laws, with the participation of the Chamber of Deputies
Czech Parliament and Senate of the Czech Republic as
parties and the public protector of rights as intervener '
management

Follows:

§ 13 para. 2 of Act no. 115/2006 Coll., On registered partnership
and amending certain related laws, abolishing the day
this judgment in the Official Gazette.
Reason


I.

Recap of previous management and filed petition

First Application lodged at the Constitutional Court on 5. 3. 2015 submitted pursuant to Article
. 95 para. 2 of the Constitution of the Czech Republic (hereinafter "Constitution") and the provisions
§ 64 par. 3 of Act no. 182/1993 Coll., On the Constitutional Court, as amended
amended (hereinafter the "Act on the Constitutional court ")
the Municipal court in Prague (hereinafter" petitioner "or" Municipal court ") seeks
repeal § 13 para. 2 of Act no. 115/2006 Coll., on registered || | partnership and amending certain related laws, (hereinafter
"registered partnership Act").

Second The petitioner states that the resolution of the Office of Prague 13,
Department of Social Welfare and Health, dated 25. 3. 2014, ref. No. P 13-12735 / 2014
was halted proceedings on the application Ing. Petra Lana (hereinafter "the plaintiff"), a
inclusion in the register of applicants suitable to become adoptive because
applicant does not meet the requirements of § 800 of the Act no. 89/2012 Coll., Civil Code
. Appeals subsequently rejected the plaintiff City Hall. m.
Prague, Department administrative activities in health and social care
decision of 30. 4. 2014 sp. Ref. SOC: 608555/2014.
Essence of this decision lay in the fact that the administrative body of first instance has
decided in accordance with the law, but failed to mention that the adoption ban
person living in a registered partnership stems from the provisions of paragraph 13 §
. 2 the registered partnership Act. This decision attacked
plaintiff filed an administrative complaint to the Municipal Court.

Third The Municipal Court in the preamble to the proposal states that the reason for prohibition of adoption in these cases
flow directly from the statutory regulation, according to which the mere existence of a registered partnership
prevents one from
partners could become adoptive child, and others fact, in this situation
not collected. The petitioner refers to Art. 1 of the Charter of Fundamental
Rights and Freedoms (the "Charter") and Art. 14 of the Convention for the Protection
Human Rights and Fundamental Freedoms ( "the Convention"), which prohibits
any form of discrimination. You can also point to Art. 21 of the Charter
Fundamental Rights of the European Union, explicitly prohibit discrimination on grounds of sexual orientation
. The petitioner summarizes the general provisions
adoption contained in § 800 of the Civil Code and states
that if an applicant for adoption lived in a marriage or in a registered partnership
, could under certain conditions to become adoptive parent.
If he lives in a registered partnership, is prohibited from acquiring already
this title, without considering the circumstances, whether such applicant is
able to create adequate facilities for the proper upbringing of the child. These
actually represent differences that are unjustified and even
there are reasonable grounds for the difference in approach.

Fourth Therefore Magistrates Court proposes to annul the contested statutory provision.

II.

Complying with the management

Fifth The Constitutional Court first considered the fulfillment of the conditions of management and
notes that the petition was filed under Art. 95 para. 2 of the Constitution.
According to this provision, the "[d] ojde If the court concludes that a statute which
to be in resolving the matter, is inconsistent with the constitutional order,
submit the matter to the Constitutional Court."

6th The Constitutional Court stated that in the present case is the case of so-called.
Specific (more precisely: incidence), and not abstract control

Standards. In view of the above, the petitioner is unquestionably
actively entitled to bring this proposal since the contested statutory provision
directly concerns the matter being handled by the municipal court, and if
Constitutional Court ruled on its constitutionality, would occur in terms of law
extremely undesirable situation where the court would have to decide
under the provisions of the Act, which, according to his firm belief in
inconsistent with the constitutional order.

7th Since the Constitutional Court has no doubts either regarding the fulfillment of other conditions
management approached the substantive discussion of the draft.

III.

The proceedings before the Constitutional Court and the parties and the secondary party


8th The Constitutional Court, under § 69 of the Act on the Constitutional Court sent the proposal
Chamber of Deputies and the Senate of the Parliament of the Czech Republic (hereinafter
"Deputies" and "Senate") as the parties and the government and
Ombudsman ( hereinafter referred to as "Guardian") who are authorized
join the proceedings as interveners.

9th Deputies in response to the petition stated that Act no. 115/2006 Coll
. the Chamber of Deputies discussed a parliamentary proposal
Act (Document no. 969) and was approved in the wording of the amendments
16th 12th, 2005. The text of § 13 para. 2 of this Act since 2005
been amended. The bill has consented
both chambers of Parliament Act was signed by the appropriate constitutional authorities and was duly promulgated also
.

10th The Senate in response to the petition stated that discussed and approved the draft
the Registered Partnership Act in the version passed him
Chamber of Deputies at its 9th meeting on 26 1st, 2006, when his approval for the vote from 65
senators present and 45 against 14. In the debate, some senators expressed
also contested statutory provision.
The bill was approved therefore constitutionally prescribed manner.

11th The government informed the Constitutional Court that his rights arising from
§ 69 para. 2 of the Constitutional Court does not use and do not enter
management.

10th Ombudsman said that, within the meaning of § 69 para.
3 of the Constitutional Court enters intervene, and
said, referring to the report on the investigation by the prosecutor in the case
processed ( sp. Ref. 2977/2014 / VOP). Legal sentence, contained in this
report are as follows: "I. The provisions of § 800 of the Civil Code of 2012
not exclude the acquisition of registered partners. However
excluded provisions of § 13 para. 2 of the Act on registered partnership.
II. Any provision or procedure of a public authority, which lead
to preventing adoption simply because of sexual orientation
potential adopters are contrary to the constitutional order and the Convention for the protection of human rights and fundamental freedoms
. " This opinion Guardian reason was that
There is no objective and rational reason for that should be prevented
registered partners adoption, even among opponents of claims
registered partners adoption. Absurdity of the whole situation is
illustrated by the fact that the legislature seeks to prevent the law
something that is not normatively regulated, namely children to be educated
registered partners. That situation is actually
exists. Excluding the possibility of biological parenting can
child care is registered partners achieved in other ways.
Most often it will be a case where one of the partners become parents before
creation of partnerships and the child continues cares.
Legislator ambivalence can be illustrated by the wording of § 13 par. 3 of the Act on Registered
partnership that in such case the other partner
obligation to care for the child. Another option is to adopt a child only one person
without de facto life partners entered into a registered partnership
because mastering a single person is legally permissible.
Guardian also referred to judgments of the European Court of Human
Rights ( "ECHR") Frette against France (dated 26. 2. 2002
no. 36515/97 complaints) or EB against France (dated 22. 1. 2008, no.
complaints 43546/02), where this court concluded that the adoption of a child
homosexually oriented person may be refused only in the event that such a decision for
there are other reasons than mere sex

Orientation candidate. In other words, the ECHR itself sexual orientation
candidates for adoption is not considered a legitimate reason for restricting its right
develop a relationship with the child suitable for adoption. Since
§ 13 paragraph. 2 the Registered Partnership Act excludes
registered partners the possibility to adopt a child solely because of their sexual orientation
, Guardian has held that this provision contravenes the right to equality
as stated in Article 14 of the Convention.

13th The Guardian points out the international comparisons, from which it follows that
of the 28 member states of the European Union, persons of the same sex to marry
in 11 countries and in 6 other states may enter into a registered partnership
. Of these 17 States allow joint adoption of a child and adoption
partner 13 states and the adoption of a child only two partner states.
Only Hungary and the Czech Republic completely forbid registered partners
adoption. The Guardian notes that the obstacle in question is not a question
political, but also a question of human rights. In this respect, we believe that
contested statutory provisions inconsistent with the right to respect for private and family life
under Art. 8 of the Convention and Article. 10 paragraph. 2 of the Charter and the prohibition of discrimination under Article
. 14 of the Convention. Finally, The Guardian expresses the opinion that
contested statutory provision constitutes direct discrimination on grounds of sexual orientation
and proposes therefore to be repealed as unconstitutional
.

14th Within the meaning of § 44 of the Law on the Constitutional Court, the Constitutional Court case
without holding a hearing, because since it was not possible
expected to clarify the matter.

IV.

Assessment of competence and constitutionality of the legislative process

15th Because the petition meets all legal requirements,
Constitutional Court could proceed to a substantive review of the contested
statutory provisions, in accordance with § 68 para. 2 of Law no.
182/1993 Coll. constitutional court, as amended by Act no. 48/2002 Coll.
first addressed the question whether it was passed and issued a constitutional
manner and within the bounds of constitutionally provided jurisdiction. In this respect, however
not find any relevant circumstance that would be able to challenge the constitutionality of the method
discussion and approval of the Act
containing the contested provision.

16th According to § 68 par. 2 of Act no. 182/1993 Coll., On the Constitutional Court
, as amended by Act no. 48/2002 Coll., Consists of evaluating the constitutionality of the law
with the constitutional order of answering three questions: whether
was adopted and issued within the bounds of constitutionally prescribed jurisdiction, whether adopted
constitutionally prescribed manner and that its contents are consistent with constitutional laws and
if another law and the laws. In the case of the contested provision
it is beyond any doubt that Parliament should, within the meaning of Article
. 15 paragraph. 1 of the Constitution responsibility for its adoption. As regards the way
adoption of the Registered Partnership Act, the Constitutional Court found the
observations of the parties, as well as other publicly available
documents relating to the legislative process that the bill, proposed by a group of deputies
(Anna Čurdová, Jitka Kupčová, Tatiana Fischer,
Kateřina Dostálová Lucie Talmanová, Catherine Final, Zdenek Jicinsky,
Vladimir Dolezal, Pavel Svoboda, Vlastimil Sharp and Vladimir Konicek,
Deputies, 2005 IV. electoral period print no. 969, in:
http: //www.psp.cz/sqw/text/tiskt.sqw? o = 4 & ct = 969 & CTL = 0), was adopted
constitutionally prescribed manner.

17th Thus, nothing shall prevent the Constitutional Court in order to proceed to substantive
evaluating the constitutionality of the contested provision.

V.

Basis in reviewing the contested statutory provision
V.1


Quote contested provisions and other relevant provisions

18th Under § 799 of the Civil Code applies:

"(1) the adopter can only be an adult and able persons,
warrants if their personal qualities and way of life, as well
reasons and motives which had led to the adoption, it will be for mastering | || child a good parent.

(2) Health status of the adoptive parent or both adoptive parents must not limit
care of the adopted child to a great extent. "

19th Under § 800 of the Civil Code applies:

"(1) the adopter may become spouses or one of the spouses. Exceptionally
may also adopt another person, in which case the court also decides that
deleted from the register record of the second parent.


(2) They learn when married, bring an adoption
together as co-adopters. "

20th provisions of § 13 of the Registered Partnership Act:

(1) Existence partnership is not an obstacle to the exercise of parental responsibility
partner for his child nor hinder his
custody of the child to his upbringing. partner, who is a parent, is required to ensure
child development and consistently protect its interests with appropriate
educational resources, so as not to affect the child's dignity and
threaten the health and physical, emotional, intellectual and moral development.

(2) Continuing the partnership precludes any of the partners became adopter
child.

(3) If one partner cares for the child and both partners live in
common household involved in the upbringing of the child and the other partner;
obligations concerning the protection and development of the child's upbringing apply to this partner
.

21st Constitutional court finds, first, that the "new" Civil Code in this respect compared to modify
enshrined in § 63-66 is currently already canceled
Law no. 94/1963 Coll., on family, as amended
regulations made rather merely formulaic, rather than systemic
substantive change. Already this law has provided that the adoptive parents can become
Only natural persons (§ 64 para. 1), with a common child
anyone can learn just married (§ 66 para. 1). The Act thus enabling
adoption as an individual (ie. By one person), as well as mastering
common in the latter case, the adoptive parents may become
exclusively husbands.

22nd Of cited existing legislation, follows several conclusions. First, the legislature favors the adoption
spouses, respectively. one of the spouses, and
this reason, it is in the primary interest of the child to be given a chance to live in
"complete" family standard approach.
Adoption option "other" person, that is apparently a person living alone, represents
exception to this rule. In this case, however, they must be given
unequivocal guarantee that the person is able to offer the child
adequate guarantees for its development and meeting the needs, not only
material. Simply stated, every child should grow up in an environment where
will feel good, where you will feel the interest and love of their
next and last but not least will have the reassurance
so important for it to be possible grow broadly developed and reasonably
confident personality.

23rd The approach from the statutory regulation also implies that
rules contained in the Civil Code does not exclude a priori that the adoptive parent can become
also a person living in a registered partnership (which would be called.
Another person law mentions) , although it should not be a situation
regular, but rather exceptional (see also § 3020
provisions of the civil Code, according to which the provisions of sections first, third and fourth
about marriage and the rights and obligations of spouses apply mutatis mutandis to
registered partnerships and the rights and obligations of the partners). This option
therefore been unequivocally prohibits only the contested provisions of the law on registered partnership
. Moreover, also from the explanatory memorandum to the "new"
Civil Code, the provisions of § 800 follows sketchy statement that
"[u] wadi with explicit enumeration conceivable kind" adoptive parents,
that the existing legal adjustments can only be inferred. (in contrast, the local
provision can be inferred that the terms of listing.) Another 'means a person who lives
if even she does not live in any legally recognized union. it can not be
but be a registered partners, especially with regard to another
legislation in which relationships are governed by registered partners. "

24th The legislative process in the adoption of the law on registered partnership
yet not at all clear what was in this direction
real intention of the legislature, what was and what motivated reasoning
supported so that even in this case applied the assumption of rational
legislator. The explanatory notes to this provision merely follows
that "the adoption of a child registered partners, respectively.
Any of the partners for the duration of the partnership will be banned. This is
preference foster care child heterosexual couple."
Already doing at this point the Constitutional Court notes that even so baldly conceived
explanation is fitting, since the argument preference foster care

Child heterosexual couple would have relevance only if confirmed
acquiring individual legislator completely ruled out, but that considering
above is not true. Regardless to other illogicality where, for example.
Guardian aptly points out, paragraph 3 of the contested provision
to the obligation of the other partner to participate in the upbringing of the child, which cares
registered partner (for this see also below).
V.2


Relevant jurisprudence of the European Court of Human Rights

25th The question of adoption of children repeatedly dealt with the case law of the ECHR, on which
indeed explicitly refers Guardian. The Constitutional Court considers
for now adjudicated case for most particularly following the decision
ECHR.

26th In the aforementioned judgment, Frette against France, the complainant asked
in 1991 a preliminary agreement on child adoptions, while
during the investigation before the administrative authorities made no secret of his homosexuality.
His application was rejected and failed to meet his or administrative courts. Arguments
national authorities to refer to his lifestyle and lack
appropriate safeguards from the perspective of education of children, families and psychology
uncontested despite his personal qualities and assumptions
raise children. The complainant before the ECHR argued that his request was rejected
solely because of prejudice about his sexual orientation. ECHR
obliged him only about the right to a fair trial. It has stated
(in terms of the possible application of Art. 8 and 14 of the Convention), the right to adoption
Convention does not guarantee a right to family life implies the existence
family, so it is not enough to establish her desire. The ECHR, however, came from
that the French civil code allows the Art. 343 adoptions and
unmarried person and that the reasons put forward by the national authorities
rejection implicitly suggested that the applicant's sexual orientation
was a decisive factor. Therefore examined the complainant objected
as falling within the scope of Article 8 of the Convention, without, however, commented on the fact
whether they are family or private life.
Complainant but also claimed a violation of his private life (§ 28). The court of
next step, acknowledged that the refusal pursued a legitimate aim - the protection
health and child rights. Likewise, criticized the rejection as appropriate
objectives pursued since states have in the field of adoptions same-sex couples
wide margin of appreciation, there was no international consensus on these issues
and national authorities can legitimately and reasonably concluded that the right to adoption || | was limited interests of the child.

27th In also has cited the judgment of the Grand Chamber EB against France
ECHR found violations of the Convention by the complainant
homosexual orientation was not allowed adoptions, even an unmarried person could
according to the Civil Code children learn. The complainant was therefore
discriminated against based on their sexual orientation. It is therefore somewhat debatable how
judgment EB against France eventually overcomes judgment
Frette against France. From the perspective of legal sites has had a thing against EB
France as a Grand Chamber judgment greater weight and refers to the same
situation where legislation homosexually oriented person does not prohibit the adoption
(following the sexual orientation of the adoptive parent), but in practice
was the adoption on the basis of sexual orientation denied. In the case of FRET
against France, however, this procedure ECHR accepted based on the interests of the child and
absence of international consensus, in the case of EB, however, has described the ECHR
inconsistent with the Convention, as it found no facts justifying discrimination
the basis of sexual orientation. In view of the fact
However, the two situations differ somewhat, at which points the judgment EB (§
70-71). In the case of FRET rather, a gay man without a partner
national authorities began to see the problem in his lifestyle and noticed
that may not be able to oversee the practical problems associated with the arrival
child. Conversely EB was a long living together
same-pair. These facts may suggest a certain differentiation
later from an earlier judgment EB FRET, although these factual circumstances
do not accentuated.

28th In its judgment in the case Schalk and Kopf v Austria (judgment of
24th 6. 2010, Application no. 30141/04) the ECtHR found that the Convention does not
obligation of the State to enable the conclusion of marriage between same-sex couples,
so there is a violation. According to Article 12 of the Convention does not give rise

Obligation to disclose marriages and same-sex couples.
However, the Court found that the relationship between the complainant (ie. Same-sex couple
living in a stable de facto partnership) falls under the concept of not only
private life, but also represents a family life within the meaning of Art. 8 of the Convention
(§ 90-95).

29th In the judgment in X and Others v Austria (judgment of the Grand Chamber dated
19. 2. 2013, Application no. 19010/07) The ECHR concluded that
upřením partner opportunities to learn their biological child | || same-mate in comparison with the situation of an unmarried heterosexual couple
Austria violates the Convention. In a similar case
Gas and Dubois v France (dated 15. 3. 2012, no. 25951/07 complaints)
ECHR said that if it can not adopt the child of his partner
a same partner in a civil union, as well as would be the case
heterosexual couple in a civil union, there is no discrimination on grounds of sexual orientation
. Their position is different from that
married couples. In the case X. against Austria and others are talking about
unmarried homosexual partners, while unmarried heterosexual partners
under the Civil Code had full opportunity to adopt a child
second biological parent. The ECHR came from the fact that the Convention does not allow
unmarried partners to adopt the biological child of the other partner
. Unmarried same-sex partners are not in a relevantly similar situation
as a married couple, from this perspective, therefore, the Convention has not been violated
. If, however, Austrian law allows unmarried heterosexual couples adoption
biological child of the other partner is needed
assess whether the denial of rights to unmarried homosexual couples
serves a legitimate aim and is proportionate to him. The complainants together
long lived in the same household and their relationship fell under the concept
family life under Art. 8 of the Convention. The Austrian Government has
acknowledged that same-sex couples could in principle be equally suitable
for adoption as heterosexual couples. The Court acknowledged that the protection of the traditional family
may be in principle a legitimate aim justifying the difference in treatment
as well as protecting the interests of children.
In case of differences of treatment on grounds of sexual orientation, the government should demonstrate the need
different approach to achieve these goals. The Austrian government has
no evidence that the child would be harmful to the education of same
pair, plus adoption was open to homosexually oriented person, whether
already entered into a registered partnership or living alone. The court emphasized that
does not address the general issue of access to a same partner
biological child of the other partner, but the differences in treatment between
unmarried heterosexual and homosexual pair of unregistered
approach to adoption. If there are no grounds for a ban u
unregistered homosexual couples, it would be rather predictable that in the best interests of the child
courts assess individual circumstances
specific cases. This is but the courts can not meaningfully addressed
because it was not legally possible. There has therefore been a violation of Article. 14 and 8 of the Convention.
V.3

Another relevant case law


30th The Austrian Constitutional Court judgment file no. Ref. 119-120 G / 2004
canceled as of 31. 12. 2015 as unconstitutional provisions of the Civil Code
and the Registered Partnership Act which prohibited the joint adoption
registered partners. Already in its earlier decisions
Constitutional Court took the same approach as the ECHR in the case of Schalk and Kopf
when it said that the relations of persons of the same sex are not purely
under the concept of "private life", but also by the term " family life "under Article
. 8 paragraph. 1 of the Convention, where same-sex couples together
live in a stable de facto partnership. This was eg. The resolution
sp. Ref. B1405 / 10 of 22. 9. 2011 and resolution file. Ref. G14 / 10 dated
second 10, 2012. Also, in its judgment. Ref. G16 / 2013 dated 10. 12. 2013
in which the Constitutional Court found the contested provisions of the law on reproductive medicine
(Fortpflanzungsmedizingesetz) unconstitutional, because
concluded that limiting access to reproductive medicine
only for married couples and couples of different sexes is in conflict with Art. 8
conjunction with Art. 14 of the Convention. Furthermore, even in its judgment. Ref. 18 G, 19/2013 dated
19th 6th 2013 in which it finds discriminatory provisions of the Federal law on personal status
(Personenstandsgesetz), which permitted (restricted)

Conclude registered partnership only in official rooms.

31st In the case of the 2015 applicants were living together long
registered partners who educate biological child of one of them
and were interested in the joint adoption of another "foreign" child. They argued that
there is no justification for it to registered partners were generally
barred from joint adoption, and that it was a judicial review
their suitability with regard to the best interests of the child previously excluded, while husbands
they are fundamentally deemed suitable adoptive parents.
Austrian legal system accepts that children grow up in families of same-sex
(in this case, the registered partner in terms
legal parents of daughters second complainant), and is based on the fact that it is not
inappropriate for a child. It is not factually justified why
person living in a registered partnership may adopt the child as an individual, whether
partner's own child or "foreign" child, which then in such a family
persons of the same sex, ie. As well as with partner or partner adoptive
partner grows, and registered partners can not adopt together.
Contested legislation and were in their opinion, contrary to the principle of equal treatment
and also with Article. 8 in conjunction with Art. 14 of the Convention.

32nd The Constitutional Court concluded that the contested legislation, which allows
joint adoption only spouses and registered partners
from joint adoption precludes the legislature in the possibility of joint adoption
distinction based on sexual orientation.
Legislature that unevenly treats registered partners as
contracting party to the Agreement on adoption and registered or
permanent partners of the same or opposite sex in the case of adoption
biological child of the other partner. While the joint acquisition of registered partners is
ruled out even when both have custody of the child or partner has a child
mastered, the law allows adoption stepchild parallel
(legal) own parenting and adoptive parents. Such inequality
treatment is objectively justified - especially with regard to the aspect
child's best interests, which derives from Art. 1 of the Federal Law on the Rights of the Child
(BGB1. I 4/2011). It does not follow either from Art. 8 in conjunction with Article
. 14 of the Convention nor Article. 7 paragraph. 1 of the Constitution. The best interest of the child can not justify the substantial exclusion
registered partners the possibility
adoption of a child, on the contrary, in a certain respect, it is with this exclusion in
voltage. Arguments to justify a ban that, in accordance with the interest
child is to grow up with same sex partners, called the court for
"pre inappropriate." Also, the protection of marriage and the traditional family
therefore not a good argument. Socially viewed
worth a registered partnership in any relationship substitution for marriage and joint adoption
suitable partners in each individual case can threaten a marriage.
V.4


Conclusions drawn from case law cited

33rd Of those judgments essentially be summarized that the Convention does not establish
right to adoption. However, if the State decides to allow adoptions and
certain groups of people (eg. Unmarried persons)
not act in a discriminatory manner (EB, X and others, § 152). To assess
whether discrimination has taken the ECHR in finding a suitable comparator
comparing individual adoption heterosexual and homosexual (FRET E.
B.), Registered same-sex partnerships with civil partnerships to heterosexual
(Gas and Dubois), unregistered same-sex couple with
unmarried heterosexual pair (X, others). On the contrary, did not
comparable legal situation and registered a pair sezdaného
did not find a violation, if such. Austrian legal order allowed
adoption to heterosexual married couples, while same-sex partner
acquiring biological child of his companions not (X. and others).
Best interest of the child should lead to be evaluated
individual circumstances of specific cases (X. and others). In cases where the
difference in treatment based on sex or sexual orientation,
State must establish that this difference in treatment was justified
legitimate aim and the means to achieve it are appropriate and necessary
.
In
I

The actual reasoning of the Constitutional Court

34th SUMMARY institute adoption of a child lies in the adoption of a foreign child

Their own, with all the associated legal implications.
The institute has its origins in Roman law and its basic idea
is that the adoption mimics the natural relationship between parents and children (Adoption
naturam imitatur - the adoption imitates nature, see, eg. J. || | Sedlacek in: Fr. Rouček, J. Sedlacek. Comments to the Czechoslovak
general civil Code. Vol. 1. Praha: V. Linhart, 1935, p. 894
). Adoption and other forms of so-called. Foster care, however, should
always be perceived only as an alternative in case of crisis, natural
family, whose goal is the best possible service child.
Same time we can distinguish three main types of adoption: 1. Individual, 2nd and 3rd joint adoption
biological child partner or spouse (called. "Second Parent Adoption"
"l'Adoption coparentale '' Stiefkindadoption ").

35th The Constitutional Court based primarily on the fact that there
fundamental right to adopt a child, at the constitutional level and even at the level of international commitments
Czech Republic. At the same time the local court of
accepts considerable freedom of the legislator when editing
relations between same-sex partners. It is not given even the basic right to marriage
(resp. Registered partnership)
between persons of the same sex, and is therefore a matter of political decision legislature
whether and how this relationship is adjusted. Special protection is guaranteed only
because parenting and family (Art. 32 paragraph. 1 of the Charter).
Obligation to intervene, therefore finds that the Constitutional Court only in case if
would find a particular solution chosen affects fundamental rights
certain groups of people.

36th The Constitutional Court also notes that it does not intend to attempt to formulate
generally applicable and concise definition of the term "family". That is the primary task
other social disciplines (eg. Sociology), where
different example. So. Complete and incomplete family, family
basic (nuclear), and two multi-generational, harmonious or pathological like.
From the point of view of law is crucial to create an environment that the family
adequately protected and to ensure all the conditions for that
able to fulfill its basic functions. It suffices therefore conclude that
term "family" understands the Constitutional Court primarily not as a kind of artificial
social construct, but primarily as a biological construct, based on the blood kinship
people who live together, or a relationship || | from unrelated, which mimics a biological relationship (adoption, foster care
, see eg. S. Radvanová in: Radvanová S. et al.
Family and child in the new civil Code. Praha: CH Beck, 2015, p.
3 et seq.). As already adjusted the general Civil Code, "family
mean grandparents with all his descendants. The ratio between these persons
called kinship, relationship, however, which arises between one spouse and relatives
second husband, švagrovstvím '( § 40). At present, however
Civil Code does not define the concept of family legally, which is explained
necessary that there is significant "inconsistencies as their own family
conceptions of social sciences definition, firstly, that the family
itself is not in our legislation subject of legal relations, but
entities are only individual members "(M. Hrušáková in: M.
Hrušáková, Z. Králíčková. Czech family law. 3rd edition. Brno:
Masaryk University and Supplement, 2006, p. 12).

37th The Constitutional Court obviously can not ignore that there is currently
fundamental changes in the way cohabitation, unlike more traditional approach
families generally This provides for a joint life
multiple generations live more self (ie. singles)
number of unmarried couples (cohabitation companion and partner or other forms of cohabitation)
approximates the number of married couples and divorce is seen as something almost natural
(detailed statistics see eg. I. || | Kohoutová: Socio-demographic homogamy of married and unmarried couples.
CSO, 2014). Before these events, the Constitutional Court can not "close its eyes". How
moreover, the Constitutional Court recently stated in its judgment. Nos. Pl. US 10/15 of
19th 11th 2015 (44/2016 Coll.), "Is far from that in any way determined people
they bundle together they live. This is certainly the right of every individual."
On the other hand, the Constitutional Court emphasizes that it does not see the slightest
sane reason for which he himself was the erosion of the traditional concept

Family and its function in any way contribute actively. As the sociologist writes
I. Possible, "the family is changing, but there is always a stabilizing element
Company (I. Possible. Family and Society. Praha: SLON, 2006, p.
14), since" family is the foundation of the family or the continuation of life in other
generations "(S. Radvanová, cd, p. 3). the family therefore arises
basis of a marriage or common cohabitation of unmarried parents and child
respectively. coexistence only single parents with child (M. Hrušáková, c.
d., p. 13).

38th now in the present case, the Constitutional court notes that it is also directly relevant statutory regulation
seen that the legislature prefers
marital relationship, providing that the adoptive parents can become husband and wife, respectively.
one of the spouses. This preference follows moreover from Art. 6 of the European Convention on the adoption of children
(no. 132 / 2000 Sb. ms, "Convention on the adoption of children
), according to which" [t] Akon will allow the adoption of a child
only in cases where there are either two people, who were married without | || matter whether acquire simultaneously or sequentially, or a single person
. "

39th Prioritizing precisely this form of coexistence also considered
Constitutional Court for a fully constitutional, because basically corresponds
institution of marriage as the closest forms of cohabitation of two people of different sexes
, which takes place on the basis of their own free will and with whom || | range is associated not only rights but also obligations, and the decision to close
marriage is therefore crucial. This marriage
clearly distinguishes it from other forms of coexistence, and therefore just
institution of marriage makes a priori largest
prerequisite for fulfilling the purpose of adoption, which is and must primarily be the best interest of the child.
The fact, moreover, commits the Czech Republic and the Convention on the Adoption of Children, according
whose Art. 8, paragraph. 1, 2, "[t] he competent authority shall not authorize adoption if
not convinced that the adoption is in the child's best interest .
In all cases, the competent authority shall pay particular attention to the importance of acquiring
as a means of ensuring a stable and harmonious home, baby. "
Point it is also necessary to Art. 3 and 21 of the Convention on the Rights of the Child, of which
given that adoption (as in any other activity
concerning children) should be first and foremost take into account the interest of the child.

40th In this case, the essence of the problem that
Civil Code, on the one hand allows the baby rarely mastered is another
person (than her husband), while the Registered Partnership Act
simultaneously expressly precludes this the person was someone who lives in a registered partnership
. This leads to a situation where the legislature
admitted the adoption of a child and an individual who does not live in the marital relationship, and did not even
no restriction on whether or not that person
heterosexual or homosexual orientation. On the other hand, it prohibits
that this individual lived in a registered partnership.
The result is therefore a condition. For example, a person who lives together with an individual of the same sex
without further may apply for inclusion in the register of applicants
suitable to become adoptive parents, and that request will be after completion of all
conditions are complied with, but if in another - but actually quite similar
- if these people conclude registered partnership, its
this option is prohibited by law. This may result also in a very illogical
cases where the same person submits the application which will begin
administrative proceedings, and only after submission "legalize" its long period
lasting actual relationship by concluding a registered partnership,
consequence, however, ceases to meet the basic condition for inclusion in the relevant register
applicants for adoption.

41st In other words, the contested legal regulation clearly elevates
formal legal status (registered partnerships) over the factual state. In doing so, however, this alone
editing and even the explanatory report is not seen what
rational reason for the legislature actually led to that particular solution
which of the above described reasons appear illogical, irrational and || | ultimately also discriminatory in relation to persons who registered
partnerships concluded.

42nd Said illogicality of the existing legislation will dramatically
also reflected in the fact that the contested statutory provision prohibits namely,

To one of the registered partners became an adoptive child,
however, on the other hand, paragraph 3 of the same provision expressly
follows that the legislature with the actual care of the child registered partners
directly counted, and even in this the direction of the other partner agrees
obligations relating to the protection of child development and education.
This creates a situation where on the one hand, legislators from completely incomprehensible reasons
prohibits registered partner adoption of a child (called the case.
Second parent) and simultaneously agrees to care for them. Furthermore, the specialist literature
in this case very critically states that "the impossibility of adoption
biological child of their partner with respect to otherwise legally
emerging homoparentální educational environment appears to be absurd
obstacle to a full education of the child in a harmonious family environment "
(D. Elischer, in: S. Radvanová, cd, p. 181).

43rd Beyond argument concerning infringement of the right to equal treatment under Article
. 14 of the Convention (and the corresponding rules contained in the Charter)
in this direction offered in its statement Ombudsman, the Constitutional Court sees
basic constitutional
deficit contested statutory provision in its conflict with Art. 1 and the first sentence of Article. 10 paragraph.
1 of the Charter. Under these provisions is true that "[l] These are
free and equal in dignity and rights" and "[e] veryone has the right to
that his human dignity, personal honor, good reputation and
protect his name. " That human dignity is
Constitutional Court as the basis for the entire regulation of fundamental rights and freedoms.

44th Incidentally, a similar approach is typical for other states based on the rule of law
. In this respect, it is sufficient to refer eg. The fact that
according to Art. 79 par. 3 of the German Basic Law, the so-called.
Explicit material core (excluding the principle of federalism, democracy,
welfare state, sovereignty of the people and separation of powers) in the field of fundamental rights
ranked just of Art. 1, paragraph. 1, according to which human dignity is inviolable
respect and protect it is the duty of all state authority
. As convincingly argues Jiri Baros
(Wagner / Šimíček / Langášek / Pospisil et al., Charter of Fundamental Rights and Freedoms
- comment. Praha: Wolters Kluwer, 2012, pp. 55 et seq.), The concept of human
dignity is a basic building block
social order could push up the collapse of social hierarchies
. Its legal concept has been developed primarily in response to the horrors of the Holocaust and
in its present form is based on the perception of man as
unique personality, but which is simultaneously social beings.
Human dignity constitutes inviolable value and is part
nadpozitivního rights [see Judgment. Ref. II. US 2268/07 of 29 second
2008 (N 45/48 SbNU 527)].

45th Also Constitutional Court case law puts human dignity into the very center
law and defines it as part of itself
"humanity" of man. The violation of human dignity, therefore, is "the
when a particular individual state powers built into the role
object when it becomes a mere means, and is reduced to the form of
interchangeable quantities" [judgment file. . I. ÚS 557/09 dated 18. 8. 2009 (N 188/54
SbNU 325)]. The Charter thus recognizes the specific quality
man as subject and prohibits a person was exposed to the negotiations, which would
questioned his affiliation to the human family.
Equality of people in dignity and rights is the basis of recognition of the value of each person, and it
regardless of its other characteristics and usefulness or benefit for the whole
[judgment file. Nos. Pl. US 83/06 of 12. 3. 2008 (N 55/48 SbNU
629; 116/2008 Coll.)].

46th Now through the prism of human dignity as a fundamental objective values ​​
humanity and outbreaks of other fundamental rights, the contested statutory provision
stand. If it is based on the fact that a certain
rights (although not directly arising from the constitutional order, but a sub-constitutional law
) excludes certain group of people just because they decided
conclude registered partnership makes them de facto sort of person
"second order" and gives them gratuitously certain stigma that evokes
idea of ​​their inferiority, fundamental differences from other
(apparently "normal") and probably also the inability - in contrast to those
other - properly take care of children.


47th This result infers while not on the basis that it would
perhaps the person committing any objectionable, unethical, or even
infringement, but only from the fact that the person
conclude registered partnership - ie behave in a manner that allows
law and assumes they do so transparently and predictably and
take upon themselves and all the responsibilities of this partnership registered
flowing. As is also clear from the expert examination,
"consensus is the recognition of homosexuality as an innate immutable
sexual orientation, which is due to a plurality of factors.
The issue of homosexuality is a social reflection
can conclude by saying that in every if the state voluntarily unselected and will
untappable, and as such should therefore civil society should not become a pretext
discrimination "(see Elischer D., in: S.
Radvanová, cd, p. 173 ). Moreover, as the Constitutional Court already mentioned, the
this totally unjustified discrimination registered partners
legislator stepped in a situation where they simultaneously imposed
educational obligations concerning the child, which already cares for the other partner (see repeatedly | || cited § 13 par. 3 of the registered partnership Act).

48th Violation of human dignity (as a fundamental right,
interpretive guides and objective values) while the Constitutional Court
sees in conjunction with the provisions of Article. 10 paragraph. 1 and 2 of the Charter, according
which everyone has the right to maintain their human dignity and the right to
protection against unauthorized intrusion into private life, and, by analogy with Article
. 8 paragraph. 1 of the Convention, zaručujím right to respect for private life
. The right to protection of family life, which also cited articles
guarantee, however, contested statutory provisions violate not because
if there is no fundamental right to adopt a child, can not be
negative decision in the case of adoption, of course violate any right to
family life.

49th It is true that persons living in registered partnerships are undisputed
right to privacy, in its internal and external approach. This
protection and respect of the state, however, can not be completely filled,
if you continue to stigmatize these people that the law
completely preclude any of them ever ran for adoption.
The content of the right to privacy is also securing the space for the development and implementation
personality, and therefore includes also "guarantee self-determination within the meaning
crucial decisions himself, including deciding on the design
own lives" ( E. Wagner in: Wagner / Šimíček / Langášek / Pospisil
et al., Charter of fundamental rights and freedoms - commentary. C. d., pp. 281-282
). The Constitutional Court is therefore convinced that
contested legal provision, which was one group of people (registered partners)
completely unjustifiably excluded from the adoption of children occurs in their
consequences affront to their human dignity and
violation of their right to respect for private life.

V II.
Conclusion


50th Given that the contested statutory provision
Constitutional Court found inconsistent with the right to human dignity, the right to private
life and the prohibition of discrimination enshrined in Art. 1, Art. 3, paragraph. 1, Art. || | 10 paragraph. 1, 2 of the Charter and Art. 8, paragraph. 1 and Art. 14 of the Convention, upheld by
§ 70 par. 1 of Act no. 182/1993 Coll., on the Constitutional court,
as amended by Act no. 48/2002 Coll., the proposal of the Municipal court in Prague decided
that this provision shall expire on the day of its publication in the Collection of laws
.

Chairman of the Constitutional Court:

JUDr. Own hand

Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took to the plenary decision
Judge Vladimir Sládeček and its justification judges, Louis David, Jaromir
Jirsa and Jiri Zemanek.