On The Proposal To Repeal § 57 Par. 1 Of The Family Act

Original Language Title: ve věci návrhu na zrušení § 57 odst. 1 zákona o rodině

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=71606&nr=244~2F2010~20Sb.&ft=txt

244/2010 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


The Constitutional Court ruled on 8 July 2010 Plenary composed of the Chairman Pavel Rychetsky
court and the judge Frantisek Duchon, Vlasta Formánková,
Vojen Güttler, Pavel Holländer, Ivana Janu, Vladimir Kurka, Dagmar
Lastovecká Jiří Mucha, Jiri Nykodým, Miloslav Vyborny, Elizabeth
Wagner and Michael Židlická on the proposal for IB and II.
of the Constitutional Court to annul § 57 par. 1 of Law no. 94/1963 Coll., on Family, as amended
, with the participation of the Chamber of Deputies and the Senate as the parties


Follows:

The provisions of § 57 par. 1 of Law no. 94/1963 Coll., On family, abolishing the day
31st December 2011.

Reason:

I.
Recap draft


A.

The circumstances that led to the submission of a constitutional complaint under file. Ref. II. US 405/09


First Timely and properly filed constitutional complaint, registered under file. Ref. II.
US 405/09, the petitioner sought that the Constitutional Court issue a judgment annulling
Supreme Court resolution dated December 17, 2008, ref. No. 30 Cdo
1493 / 2008- 69, judgment of the Regional Court Brno of 11 October 2007
no. j. 13 Co 375 / 2006-35, and the judgment of the District Court in Jihlava
dated 2 August 2006, ref. no. 21 C 36 / 2006-14 for alleged breach of fundamental rights
complainant, who are guaranteed in Article. 10 paragraph. 2, Art. 11 paragraph. 1 and Art.
39 of the Charter of fundamental rights and freedoms (the "Charter") and Art. 6, Art. 8
and Art. 13 of the Convention on protection of human rights and fundamental freedoms (hereinafter
"Convention"). Along with this, the petitioner sought the annulment of § 57 par. 1
Act no. 94/1963 Coll., On family, as amended, in
words "six months".

Second In his constitutional complaint, the complainant stated that he was under the legal presumption of paternity
husband mothers according to § 51 paragraph. 1 of the Family Act
entered in the register as the father LS born in October of the same year, however, the complainant asked
wife, to be moved from the home, which
applicant claimed to understand precisely with regard to the recent birth of his son
L. and also due to the fact that his wife
jointly planned the construction of a house. The complainant then in November of the same
found out that his wife has at least two years
maintains an affair with another man. When in December wife shared an apartment abandoned when
common cleaning closets complainant found the valuables
negative film, which partly contained family photos and partly record
lover of adventure complainant's wife and her lover.
The complainant suspected that not the father of a child born in February - even
considering that at the time of conception was on a business trip.
Therefore decided to carry out a DNA test by an accredited company with Generi Biotech.
Ro test confirmed that the complainant was not the biological father LS

Third The complainant in her complaint also stated that it is in divorce proceedings
wife suggested addressing the issue of actual paternity
second-born child if he withdraws from legal claims under the property settlement
their joint property. In its observations on
constitutional complaint to the (already former) wife of the petitioner, he said: "It
true that I am part of the settlement of marital
offered the complainant a comprehensive solution so that we address the issue of paternity | || I called on him to [me] did not pay the market value
cooperative apartment, which to me was transferred free of charge to my grandparents for
marriage and therefore if I had to pay the complainant
half the market value of cooperative the apartment was extensively
financially advantaged, so today we can not say that my attitude is immoral. it was an
complainant, who strictly insisted on their rights and on the asset
settlement, which was indeed in accordance with the law, but certainly not in terms of fine
factual ". As indicated above, the complainant
"comprehensive solution" agree.

Fourth Instead, the complainant filed on 17
1, 2005 the State Prosecutor incentive to petition for denial of paternity within the meaning of §
62 of the Family Code. However, this Supreme Prosecutor's Office failed to comply
. In reply to the complainant dated 18. 7. 2005
state prosecutor said that such a proposal is a "measure completely exceptional nature", while
to "steady relationships of status through her child can

Hit among other only under conditions prescribed by law interests of the child
denial of paternity, "stressed that it would be possible" only
if it can reliably prove that the man who testifies legal
presumption of paternity, child fathered. "it is this fact did not
Attorney for granted. She stated that" expert evidence in the investigation
initiative ... can not be done ", but also the result of the test conducted by a private DNA
companies "in any case, is not evidence of
which could possibly be plea assertion is supported
supreme state prosecutor." According to the State Attorney's wife complainant "on
Prosecution said that at the time of the conception
socialized intimately (only the complainant) and that, with the possible participation of his son and L.
on expert opinion does not agree. "a similar response complainant also received
to its request for review of the response to his original complaint in September || | 2005th

5th day 7. 3. 2006 the District court in Jihlava delivered action
complainant about the denial of paternity of a minor LS
contested judgment of that court of 2. 8. 2006 action having regard to the futile expiry of a limitation period
according to § 57 par. 1 of the family Act is rejected. About
Costs, however, the district court ruled to using the provisions
§ 150 of the CPC. And the defendant (the complainant's ex-wife) pay the costs of the proceedings
admit because of special consideration. The reason
district court saw mainly in the fact that, according to Anonymous
expert opinion, the complainant was not the biological father of the child and the
fact that the duration of the marriage was the former wife of the complainant
affair with another man, and this fact has been proven
in divorce proceedings. The petitioner's appeal, the Regional Court in Brno
judgment of the Court of First Instance in the contested judgment of 11 October 2007
confirmed verdict on reimbursement was changed so that the complainant was
obliged to replace his former wife costs, as
plaintiff in the opinion of the regional court had to be aware that according to valid legal
editing his action can not succeed. The Supreme Court subsequently contested
Resolution dated 17. 12. 2008 rejected the complainant's appeal because
found grounds of admissibility under § 237 paragraph. 1 point. c) of the CPC.

B.

Complainant's arguments relating to the unconstitutionality of § 57 par. 1 of the Law on Family


6th The complainant saw in procedure courts raising
contested provisions of § 57 par. 1 of the Family Act, violation of their fundamental rights
protection for private and family life under Article. 10 paragraph. 2
Charter and Art. 8 paragraph. 2 of the Convention (see below paragraphs 7-9). He also said that
application of the provisions of § 57 par. 1 in connection with § 62 of the Family
violation of his fundamental right to seek
established procedure, his rights before an independent and impartial tribunal within the meaning of Article. 36
paragraph. 1 and 2 of the Charter and also Art. 6 and 13 of the Convention (paragraph 11 below). Finally
complainant also pointed to the effect on fundamental right to property
(Art. 11 of the Charter, paragraph 12 below). Besides the annulment of the contested decision
ordinary courts thus in his petition also proposed that the Constitutional Court
abolished the provision in question. In support of its
complainant stated the following arguments.

7th Firstly, according to the complainant, the determination of the starting point
statutory limitation periods for filing a petition for denial of paternity at the time
when the presumed father learns that a child was born, does not hold water in terms
fundamental right to protection of family and private life within the meaning of Article.
10 paragraph. 2 of the Charter and Art. 8, paragraph. 2 of the Convention. Referring to the decision
practice of the European Court of Human Rights (hereinafter "the European Court" or
"ECHR"), namely the judgment Kroon and Others v Netherlands
[ECHR Chamber judgment of 27 10 . 1994 Application no. 18535/91,
any further cited judgments of the European court are available in the database
HUDOC,
http: //www.echr.coe.int/ECHR/EN/Header/Case -Law / HUDOC / HUDOC + database /]
complainant believes that Art. 8 of the Convention guarantees the cancellation (cancel)
family ties, which are not the result of a biological connection to
biological and social reality prevail over legal presumptions and
above the requirement of legal certainty relations, and that any presumption of paternity
can be effectively refuted. The complainant also pointed to judgment

ECHR case Shofman against Russia [ECHR Chamber judgment of 24 second
2006 Application no. 74826/01], where, according to the complainant, the European Court
ruled on almost identical facts and the law. According
this judgment is denied adjustment of status conditions of the child, identified
based on the legal presumption of paternity, due to the limitation period for bringing an action
denial of paternity, which is tied to the moment when my father intended
legal presumption learned about the birth of a child, contrary to
Convention. The introduction popěrné deadline for denial of paternity is
by the European Court of justifiable concern to ensure legal certainty
family relationships and protect the interests of the child, but only in cases where the complainant
certainly knew or had reason to believe that was not
father of a minor child from the first day of the child's life, but because
unrelated to the law had taken no steps to contest paternity within the statutory period
(petitioner also refers to other decisions of the European court of
- Chamber of the ECHR decision on unacceptability of 19. 10. 1999
Yildirim against Austria, Application no. 34308/96 and Chamber judgment of the ECHR of 28
11th, 1984, Rasmussen against Denmark, application no. 8777/79).

8th The unsustainability of the existing legislation by the complainant
repeatedly pointed out by the Constitutional Court. The complainant in this context
referring to resolution file. Ref. III. US 289/07 dated 26. 4. 2007
resolution file. Ref. III. US 1506-1507 dated 17. 1. 2008 (both, as well as other
sentiment. Constitutional Court's decisions are available in the database Nalus,
http: //nalus.usoud.cz). In addition, the complainant also referred to the judgment
sp. Ref. II. US 568/06 dated 20. 2. 2007 (N 33/44 SbNU 399 ^ *), where
Constitutional Court, with reference to scientific literature concluded that "
family is primarily a biological link, then social institute
which is only subsequently anticipated legislation. "

9th The complainant in that regard that popěrná period does not secure
trust in personal relationships, rather it leads to legal father
actively found out his biological fatherhood in the six months after
birth. Legal regulation must respect the social implications of his
relation to minor children. Relative is a crucial
importance for the actual development of the child's mental balance, to develop his personality and his
inclusion in society. In the case of the complainant, but such a bond
missing. Moreover, from his legal status implies a series
obligations, in addition to maintenance obligations as well as the obligation
care properly for the child's upbringing. Fulfillment of these obligations requires
emotional, time and material investments without ensuring that concerned itself
minor child later will want to achieve a change of status of their
ratios and thus relieve potential liabilities against the complainant.
This leads to an obvious disparity between the complainant's duties and responsibilities
supposed child.

10th The child itself is yet given situation according to the complainant
also be affected. Minor child is based on Art. 8 of the Convention on the Law
creation of a legal relationship with their real (biological) father (here
complainant refers to the Chamber of the ECHR judgment of 7. 2. 2002
Mikulić against Croatia, Application no. 53176/99) and also has the right to know their origins
, which is guaranteed by Art. 7 of the Convention on the rights of the child (published under no.
104/1991 Sb.).

11th Secondly, there is the view of the complainant's application of § 57 paragraph
. 1 in connection with § 62 of the Family Code violations
fundamental right to seek a prescribed procedure, his rights before
independent and impartial tribunal within the meaning of Art. 36 para. 1 and 2 of the Charter and also
Art. 6 and 13 of the Convention. The legislation in force does not allow
question of paternity if the elapsed popěrná statutory deadline. Although
family law allows legal father file a motion to the Supreme Public Prosecutor's Office
to file a petition for denial of fatherhood, not given
no effective remedies to enforce the submission of such a proposal.
Besides the answers from the Supreme Public Prosecutor's Office on the initiative
complainant indicates that the Supreme Public Prosecutor's Office does not have
effective means of legal protection to the complainant's fundamental rights
ensure (the complainant in this context pointed out the impossibility of the Supreme || | prosecutor's office ordered an expert examination of DNA of the child and

It is not possible to use the results of DNA tests carried out on the initiative of father
a private company). Finally, the complainant pointed to some
decision of the Constitutional Court, which appealed to the Constitutional Court, the Supreme Public Prosecutor's Office
reconsider its approach, which refuses to
initiative to petition for denial of paternity under § 62 of the || | family, referring to the lack of interest of the child to the regulation of conditions (besides
resolution cit. in item 8 above, the complainant referred to resolution file. Ref. IV.
US 158/06 dated 24. 4. 2006 resolution file . zn. IV. ÚS 466/07 dated
28th 5th 2007).

12th Finally, the complainant also pointed to the effect on their property
fundamental rights. Violation of the right to own property under Art. 11 of the Charter
can be seen in its obligation to pay for the biological parents, or for
law, and consequently that the child until the age of 18 years
his heir indispensable.

C.

Referral petition to annul § 57 par. 1 of the Family Code of the Constitutional Court Plenum


13th By order dated 23 June 2009, ref. No. II. US 405 / 09-58 came II.
Senate Constitutional Court concluded that the application of § 57 par. 1 of the
family in the words "six months" led to the fact that
is the subject of the constitutional complaint, and the complainant also alleged that contradiction
provisions of the constitutional order. For this reason, the Constitutional Court
ceded its proposal to repeal that provision to the full court
Constitutional Court under Article. 87 paragraph. 1 point. a) of the Constitution.

14th At the same time the Constitutional Court panel said that the fact in question occurred
applying the entire provisions of § 57 par. 1 of the Family Act.
Indeed, if there were only yanking the deadline to contest paternity in
words "six months", as suggested by the complainant and in the case
comply with this proposal, the Constitutional Court actually created an entirely new legal norm
stipulating that the mother's husband may deny
paternity of a child at any time, which would have a conflict with the fundamental rights
child to respect for private and family life under Article. 8
Convention, Art. 32 par. 4 and Art. 8, paragraph. 1 of the Convention on the rights of the child,
respectively. widely envisaged in the interest of the child, whose
monitoring must be a primary consideration in all actions concerning children, whether undertaken by public
or private social welfare institutions,
courts, administrative authorities or legislative bodies, pursuant to Article. 3. 1
Convention on the rights of the child, respectively. with guarantees special protection of children and adolescents
under Article. 32 paragraph. 1 of the Charter.

15th This panel of the Constitutional Court said that the provisions of § 57 par. 1
Family Act is inconsistent with the right to respect for private and family life
father of a child in the sense, as follows from the ECHR verdict in the case
Shofman against Russia (op. at paragraph 7), with the right to informational self-determination
child's father as a component of the right to protect his privacy,
and finally with the right to existence of effective legal means to protect the fundamental rights
within the meaning of Article . 13 of the Convention. Unconstitutionality of § 57 par. 1
family law in the opinion of the Constitutional Court lies in the imbalance
fundamental rights and interests of the father of a child whose paternity was
determined based on the first presumption of paternity, the child and his mother.
Can not be ruled out either conclusion about the unconstitutionality of that provision for
conflict with their own interests of the child. Therefore, the Constitutional Court panel ruled
according to § 78 para. 2 of the Constitutional Court, as amended by Law no. 48/2002
Coll., (Hereinafter the "Law on the Constitutional Court") on how to submit a proposal
to annul the entire provisions of § 57 par. 1 of the family Act, which in the present case
applied, whereby the Constitutional court plenum creates procedural
space for a comprehensive assessment of conflicting fundamental rights.

II.

Recap observations of the parties

16th The Constitutional Court requested the case file and invited the parties
management to comment on a proposal to repeal the contested provision.
The statement urged with regard to its scope and the Ministry of Justice
.

17th The Senate, in its statement signed by its chairman Premysl Sobotka
stated that the contested provisions in the Act since the beginning of his
force with effect from April 1, 1964, without prejudice to any
change. Since the Senate was established only in 1996, it is clear that
approval of this provision did not participate.


18th Deputies in its statement signed by its Vice
Miroslava Nemcova summarized the relevant part of the explanatory
management of the relevant government bill on the Family, which includes
was also contested provisions and the legislative process in the National Assembly of the Czechoslovak
Socialist Republic in its III.
election period. He added that despite extensive amendment to the Family Act in the coming years
not previously contested provision was amended.

19th The Ministry of Justice said in its statement that the legal
means to determine paternity based on several social
requirements. This is particularly essential that the baby had both of his parents
. Another requirement is that the legal relationship in as many
cases even equated with biological relationship. Last but not least, the
desirable that this relationship was determined in the shortest possible time after
birth, which meets the requirement for maximum stability
legal parent-child relationship. When applying all these requirements, it is necessary to follow
particular the principle of protection of the interests of the child. In the case of the complainant's
according to the Ministry of Justice
demonstrate the absence of a biological relationship between the complainant and the second intervener (ie. A child whose paternity
complainant denies). It is important to assess whether keeping
mismatches legal relationship with the state is the de facto in the interest of the child or not
. Under these circumstances, the Prosecutor General to consider more
opportunity to submit its proposal to deny paternity because those
actually fulfill the legal conditions under which it is possible to proceed with this step
. It is not possible in this case to rely only general
claiming that the denial of paternity of a man who apparently is not the biological father of the child
, and that this child does not have another emotional, child
beneficial relationship, not in the interests child. The Ministry of Justice
but disagrees with the proposal to repeal the contested provision of the Family Code, but
view of the fact that the current legal situation and current practices of justice
ongoing within its boundaries, gets in some cases to || | contrary to the jurisprudence of the Constitutional court and the European court proposes
proceed with its legislative change. It should specify the conditions under which it is possible
file a petition for denial of fatherhood after the expiration of the legal
deadlines in cases when it is not in the child's best interest nor in the interest of the father
registered in the register of maintaining the non-compliance of legal relations
de facto state.

20th While the Ombudsman is not the party of the complainant
proposal to repeal the provisions of § 57 par. 1 of the Family Act, but
as collision guardian of a minor hitch in the proceedings on the constitutional complaint
provided its opinion on the proposal. In its statement did not recommend the proposal
comply with respect to the steady system of legal presumptions of fatherhood and
the maximum time denying paternity justified by the need
stability of the family as the basic social unit. He
simultaneously pointed to the obvious conflict are several legitimate constitutionally protected interests -
next legitimate interest in denial "matrikového fatherhood" in competition with
precisely identified biological fatherhood and the rights of the child to know his
Parents need to respect the law mother to protect her honor and privacy
a child's right to respect for his private life, honor and reputation
. He also emphasized the absence of legislation that
would enable courts to impose on (matrikovému father, mother and child
) to submit to DNA tests and the risk of acquiring such a way
tests insider deal.

III.

Text of the contested legislation

21st The provisions of § 57 par. 1 of the Family Code reads: "The husband may
six months from the day he learns that his wife had a baby, deny
in court that his father is."

IV.

Constitutionality of the legislative process

22nd According to § 68 para. 2 of the Constitutional Court, the Constitutional Court finds the
proceedings to annul statutes and other laws, whether the contested act
or another law was passed and issued within the bounds of constitutionally provided jurisdiction and in a constitutionally
prescribed manner. As is clear from the observations
parties contested provision was part of the original version
Family Act of 1963, while over this period remained on track its wording

No changes. Assessment of the legislative process would mean
assess compliance with an already obsolete constitutional provisions in force upon adoption of the Law
. Based on § 66 para. 2 of the Constitutional Court, according to which
proposal is inadmissible if a constitutional act, with whom, according to the draft
reviewed regulations are inconsistent, lost prior to delivery to the draft of the Constitutional Court
validity and the constitutional court states that in the case
legal regulations issued before the Constitution of 1 January 1993
is authorized to review only their consistency with the existing constitutional order
, but not the constitutionality of the process of their creation and
compliance with regulatory competences (cf. judgment dated 27 October 1999
sp. Nos. Pl. US 10/99, N 150/16 SbNU 115, 290/1999 Sb.). For this reason
Constitutional Court could not assess the above procedures or in this case
.

V.
The Review


A.

Starting point for consideration of the right to respect for private and family life


23rd The right to respect for private and family life under Article. 10
paragraph. 2 Charter and Art. 8 of the Convention prevents public authorities arbitrarily
interfere in the intimate sphere of each individual, which represent
relations between parents and child. These relationships are the most natural expression of human identity and
law in a democratic and free society must
respect their existence. Meaning and nature of family relationships and family life
is not primarily legal; law only recognizes
protect their real existence. This protection can then be secured only
obligation to refrain from certain interventions by public authorities
. The state is also obliged to adopt such legislation, which will ensure
legal recognition of family relationships and define its content in both
relations between family members with each other and against third parties.

24th By definition, the legal definition of family to reflect primarily
existence of biological relationships. It follows that the requirement that legal
paternity unless it is a case of adoption, corresponded
true biological paternity. This requirement does not yet reflected in the subjective right
father of the child to be his biological fatherhood
respected by the public authorities. Corresponds to him and the child's right to know their biological parents
explicitly expressed in Art. 7, paragraph. 1
Convention on the Rights of the Child.

25th The importance of biological ties to the legal definition of family has
Constitutional Court emphasized in its Judgment. Ref. II. US 568/06 dated 20. 2. 2007
(N 33/44 SbNU 399). In it, the Constitutional Court ruled on a constitutional complaint, which was associated with
popěrnou action of the Attorney General within the meaning
§ 62 of the Family Act, filed a complaint grandmother child who
challenged the paternity of the legal father of the child of his deceased daughter .
Constitutional Court in this judgment, stated that "where it comes into conflict
interested persons related by blood, where evidence shows
social ties forming the typical features families, with a focus
unrelated persons, between them and the child in the past, while also
created as a result of prolonged cohabitation aforementioned links
emotional, social and others that would otherwise filled features called.
de facto family ties, it is necessary - not- If there is another overriding reason -
provide protection to those family relationships that meet alongside links
emotional and social relationship and consanguinity. "

26th On the other hand, the general security requirement compliance
biological and legal paternity can not lead to undue interference in private life
parents of a child who would lie in the requirement to notify the authorities
public authorities reality of their intimate life. It would be necessary
if paternity issue must be addressed, beyond any reasonable doubt
. Such a requirement would, however, fundamentally and in terms of rights
respect for private and family life in a disproportionate manner
interfering in the private sphere of individuals, to the existence of mutual trust parents
child. Legal paternity parents is so determined based on assumptions
based on the cultural framework of society and allow to determine paternity
was no excessive formal requirements. This also corresponds
so. first presumption of paternity expressed in § 51 paragraph. 1 of the Family Code, under which
brief, considered as the father of the child the mother's husband.

This presumption, which found its expression to Roman law
(est quem floors nuptiae demonstrator, ie "the father is the one who is married to a woman
") and is based on the assumption that the mother's husband is
also the real father of the child.

27th The very assumption is obviously not guarantee the actual existence
legal compliance and biological paternity.
A gap between the legal and biological fatherhood thus raises the legitimate question of how
way to be legally secured its removal.
Yet can not forget the fact that such a situation while
seriously interferes with the private sector legal father who is not the biological father and
whose legal paternity was determined solely on the basis
presumption of paternity. This is also reflected in his private and family life
in meaning as the term defined in Article. 10 paragraph. 2 of the Charter, and
may also extend to the rights of the child to know his or her parents within the meaning of Article.
7 paragraph. 1 of the Convention on the rights of the child (cf. paragraphs 23 and 24 of this
judgment).

28th Now to remove the contradiction between the legal and biological fatherhood
serves popěrná action by the father under § 57 par. 1 of the
family. This provision primarily concerns the legal status of a legal
father and child resulting from their expected family relationship.
The objective pursued by that provision can undoubtedly be considered
sympathetic to the interests of the legal establishing paternity suit
biological fatherhood. In general, this conclusion may be held
also compatible with the child's right to know their parents, which is specifically expressed in Art. 7
paragraph. 1 of the Convention on the Rights of the Child.

29th However, no requirement for legal compliance and biological paternity
regarded as absolute. The legal relationship between a father and a child is not only a reflection of the existence
mechanical biological relationship, but the procedure
time may be even in the absence of a legal relationship develop between father and child
such social and emotional attachment to legally
protection of private and family life will also enjoy legal protection.
In this case, the continued existence of legal relationships depend on more
factors, including the child's interest to play an important role - in accordance with Article.
Paragraph 3. 1 of the Convention on the Rights of the child shall be a primary consideration for
decisions of public authorities, whilst a child under Article. 7
paragraph. 1 of the Convention also have the right to know their biological parents.
Relevance for assessment but you can not deny interest in biological father, who is not in a position
legal father and the position sought, nor the interest
legal father, who's not the biological father, and he rails against his
legal paternity. Saving should also be entitled to respect for private and family life
child's mother.

30th In view of these circumstances, it is necessary to address the question of whether
from the right to the protection of private and family life, guaranteed by the legal father of the child
Article. 10 paragraph. 2 of the Charter and Art. 8 of the Convention, it follows the law
to demand that public authority in its decision removed
legal status when legal fatherhood does not correspond to biological reality, and
if so, under what conditions. To answer this question it is necessary
then weigh their rights and interests, as defined in the preceding paragraph Award.

31st The Constitutional Court directly this issue does not yet.
In its decision-making practice was confronted primarily with constitutional complaints
complainants, which were directed against the notice of the Supreme State
representative that their initiative to bring proceedings to contest paternity
within the meaning of § 62 of the Family Act has been postponed. In this context, the Constitutional Court
repeatedly stated with reference to the above mentioned decision of the European court of
that "current legal situation where the husband has the right to deny paternity
only within six months of the child's birth and when ... the Supreme Public Prosecutor's Office refuses said
bring an action may, in certain circumstances, interfere
particular Art. 8 of the Convention ... and of course the
fundamental rights and freedoms guaranteed by the constitutional order ... "
( resolution file. Ref. III. ÚS 289/07 dated 26 April 2007 resolution file.
brand. III. US 1506-1507 dated January 17, 2008). While at the same time, the Constitutional Court
appealed to the Supreme Public Prosecutor's Office, when deciding whether
action under § 62 of the Family Act, administered or not taken into account

Ruling of the European Court in the interpretation of Art. 8 of the Convention.

32nd According to him, the Contracting States not only an obligation to protect the individual against arbitrary
acts of public authorities, but also the positive obligation
ensure the effective respect for private and family life.
It can also mean to take measures which affect the legal
relationships between individuals (cf., Case Mikulić against Croatia, cit.
In section 10, paragraph 57, and the other decisions cited therein). It should be
take into account the fair balance that must be achieved between
competing interests of the individual and society as a whole. In both cases, the state has
certain degree of discretion (see.
Judgment Mikulić against Croatia, op. At paragraph 10, paragraph 58, and the other decisions cited therein).
Limits of discretion implies further jurisprudence of the European Court.

33rd The judgment against the Netherlands Kroon (op. At paragraph 7) European Court
said he was not allowed to prevail over the legal presumption
biological and social reality, without taking into account how
findings and wishes of the people concerned. This conclusion
The European Court followed the judgment Shofman against Russia (op. At paragraph 7), in which
found a violation of the fundamental right of the complainant arising from Art. 8 of the Convention
due to inability to deny paternity. The legislation
such a possibility is admitted only within one year from the moment
what a person is officially registered in the register as the father learned about
register the child's birth. The judgment was not found
violation of the Convention by the very existence popěrné annual deadline, but only when
due to its binding to the moment when the husband of the child's mother learns of
register the birth of a child, while the other was not given the means by which
would be determined by a legal presumption of paternity denial father hath gotten in a situation where
was also recognized by the court, that is not the biological father.

34th Popěrnou period alone while the European Court has accepted in its
earlier decisions, he stressed that the introduction of the limitation period
initiation of fatherhood is justifiable concern to ensure legal certainty
in family relations and to protect the child's interests (Case Rasmussen
against Denmark, cit. in section 7, paragraph 41). In another case again found that
once the limitation period has expired, so that the complainant could challenge the paternity
been accorded greater weight than the interests of the child's interests
complainant to refute paternity (admissibility decision Yildirim
against Austria , op. at paragraph 7). Role that assessment plays
whether the complainant sure he knew or had reason to believe
that is not the biological father of the child from his very birth and
yet taken any steps to deny his legal paternity, || | founded conjecture. When considering the Art. 8 of the Convention and it is rather
setup running condition popěrné periods than its very existence.

35th The latter decision of the European Court, the Constitutional Court
reflected in the assessment of the constitutional complaints against the procedure
Prosecutor General. The resolution file. Ref. IV. US 2058/07 dated
27th 3. 2008 (U 3/48 SbNU 977), the Constitutional Court stated that "the content
filed a constitutional complaint, while clearly given that the complainant had
serious doubts about his paternity in the course of the period during which he's
popěrné right of filing a lawsuit to realize, if such doubts
not conceived, certainly would have had no reason to verify them through it
requested DNA testing. but then it seems to ignore the complainant
deadline for filing the application (and whether for its ignorance, or for other reasons)
procedure - rather, "not forward" - leading ultimately to the complainant
expressible ancient, Iustinian already formulated
principle: "vigilantibus, non dormientibus iura subveniunt" - "
law helps the vigilant, not sleeping." First and foremost, therefore, not the communication
Supreme public Prosecutor's Office addressed to the complainant after the statutory deadline
popěrné, but induced the complainant itself brought about the situation -
plea for his inaction - state when in fact it would be a
generally viewed as contradictory to the fundamental right to respect for private life
"(cit. SbNU, pp. 981-982).

36th Taking into account the above conclusions of the Constitutional Court and the European Court
therefore possible to conclude that the question of the existence of consensus between biological and

Legal fatherhood is reflected in the fundamental rights of the person in the position
legal father, who says he is not the biological father of the child, to
protection of private and family life under Article. 10 paragraph. 2 of the Charter and
Art. 8 of the Convention and also the right of the child to know his parents
enshrined in Art. 7, paragraph. 1 of the Convention on the rights of the child.
The determination of paternity on the basis of statutory presumptions, without being given sufficient opportunity
legal means to challenge the question of compliance and legal
biological paternity and simultaneously seek annulment of a legal paternity
if it does not respond to biological fatherhood may
under certain circumstances constitute a breach of the law.
Not, however, conclude that the existence of a legal paternity without
correspond to biological reality is, without further infringement of the fundamental rights
legal father to a private and family life on the part of public authorities.
It is necessary to consider whether there is an interest of the child for the duration
such a condition, as well as whether or not the legal father knew or should have known that
not the biological father, had the opportunity to seek before a public | || be able to determine that there is no legal father, and finally, whether this possibility
actually used.

B.

Self-assessment draft

37th The subject of constitutional assessment in this matter is the question of whether
possibility of denial of paternity during the six-month period, which is derived from
when the husband found out about the birth of a child to his wife
stand in terms of constitutionally guaranteed fundamental rights, the rule father
So the person whose paternity of a child is rightly recognized because of the presumption of paternity
husband's mother. The Constitutional Court is the issue of the constitutionality of limits
repeatedly engaged in a number of its judgments, the finding that the deadline
prima facie without further does not and can not show signs
unconstitutionality; These can then be put before the "specific circumstances
" adjudicated matter, in other words, "an assessment of the constitutionality of the deadline
is a contextual assessment" [judgment file. Nos. Pl. US 6/05 dated 13. 12.
2005 (N 226/39 SbNU 389; 531/2005 Coll.)]. These specific circumstances are
according to existing case law of the Constitutional Court, especially the inadequacy
(disproportionality) period in relation to the period limited options
exercise constitutionally guaranteed right [judgment file. Nos. Pl. US 5/03 of
9th 7. 2003 (N 109/30 SbNU 499; 211/2003 Coll.)] Or arbitrariness by the legislature
when setting the deadline (establishing or canceling) [judgment file. Nos. Pl.
US 2/02 of 9. 3. 2004 (N 35/32 SbNU 331; 278/2004 Coll.)].

38th Although the legal presumptions, as mentioned above, a significant
simplify the determination of paternity, not the nature of things
regarded as a sufficient guarantee of compliance and legal
biological fatherhood. For that reason, it is necessary that the legal system alongside
presumptions created a legal means on the basis of a person whose
paternity was established on the basis of presumptions and which denies its
biological fatherhood can seek protection of their
subjective rights that, in proceedings before the competent public authority proves that
is not the biological father of the child.

39th This requirement is due not only to the right to respect for private and family life
how the Constitutional Court analyzed in detail in the previous section
this finding, but is essentially connected with the right of everyone to
judicial protection of individual rights within the meaning of Art. 36 para. 1 of the Charter
.

40th As a means towards protecting the basic rights of the legal father can not be
popěrnou lawsuit that may be filed
highest state representative in accordance with § 62 of the Family Code. It is a legal
resource which serves a different purpose than the action by the contested provisions
. The highest state representative can only do that action
in the interest of the child. This concern, however, is not a priori consistent with interest
legal father. Taking into account in addition to the fact that the complainant in the case
a minor child, the nature of things, not only in this case the legal
legal relationship between father and child watch particularly interested
minor child, and will therefore be only hardly be expected after the supreme Public Prosecutor bring
popěrné action.

41st It also can not ignore the fact that in bringing the highest
prosecutor is no legal entitlement, and it is up to his discretion whether to proceed
such a submission. Any stimulus husband's mother to file

This action does not constitute a proposal to initiate proceedings of which would have to be decided
and would also be subject to review in terms
discretion of the Attorney General. It asserted several times
Constitutional Court when it said in some of its decisions that the procedure
of the Attorney General or his memorandum, which announces
shippers initiative of the fact that the application is not submitted, "can not be considered
as interference by a public authority within the meaning of § 72 para. 1 point. a)
Constitutional court Act "(see eg. resolution file. Ref. IV. ÚS 2058/07
cit. in paragraph 35, supra. SbNU pp. 982, and in detail resolution file. zn.
III. ÚS 289/07 dated 26. 4. 2007). This means that it is only
highest state representatives, in order to use its powers to examine the issue
interests of the child and his eventual compliance with a legal interest
father in a particular case, and his discretion is not reviewable by the courts.
The problematic aspects of the proposal of the Attorney General to see
denial of paternity. Jíšová, A .: Design of the Attorney
for denial of paternity in practice (for discussion). Advocacy Bulletin no.
11-12 / 2006, pp. 80 to 86.

42nd On the other hand, the contested provision of § 57 par. 1 of the Family Act
undoubtedly constitutes one of the above means mentioned above in paragraph 37
because it allows the mother's husband questioned his paternity popěrnou
action, which must be lodged within six months from the date when the
learned that his wife had a baby. This creates a
process chamber to the mother's husband hath gotten their rights
determining that it is not the real father of the child, which is why it can not be legal
father. However, it is necessary to assess whether the conditions for application
respect the limits for the right to respect for private and family life,
in greater detail in the previous part of the judgment, and the right to judicial
protection under Art. 36 para. 1 of the Charter.

43rd The contested provision restricts the possibility of bringing an action for denial of paternity
a period of six months from the date when the mother's husband learned
that her child was born. It is obvious that in most cases,
which turns out this provision, the day when the husband learns about birth
identical to the day of birth. With such a definition
popěrné deadline is completely negated relevance when the person
whose paternity was based on the presumption of paternity husband
mothers hear relevant facts casting doubt on his paternity.
It is obvious that only from this moment, the legal father of the child
real opportunity to consider further the implications of such findings for
his personal life, including recourse to the competent public authority
proposal to denial fatherhood, and the deadline for bringing an action to contest paternity
.

44th Thus deadline, however, does not reflect the specific nature of the legal relationship existing between
legal father and child. In determining popěrné
deadline is not presumed to be the legal father had or had
know all the relevant facts for a possible interest in denial
paternity when a child is born wife learned.
Also impossible in this context to ask her husband the requirement that
precaution during the first six months after birth
examine whether certain factors suggest the conclusion that it is not
biological father of the child. Determining an effective opportunity to seek protection of their rights
must reflect another side to the right to protection
private and family life, which prevents the state indiscriminate and disproportionate
interference in private and family life of the individual.
This means that legislation can not ignore the fact that a significant
legal interest to deny paternity may arise with the (sometimes significant)
time after birth, and that even at this time may, as shown
particularly mentioned the case law of the European court, outweigh the concern
legal father of denial of paternity (see. eg. Shofman
ECtHR against Russia, cit. in section 7 or the Chamber of the ECHR judgment against Paulík | || Slovak dated 10. 10. 2006 complaint. no. 10699/05, where the complainant
successfully sought the possibility of denial of paternity for more than 30 years since the birth of the child
).

45th For these reasons, the Constitutional Court came to the conclusion that the contested provisions
§ 57 par. 1 of the Family Act is inconsistent with Article. 10 paragraph. 2

Charter and Art. 8 of the Convention and also with Art. 36 para. 1 of the Charter.

VI.

Formulation derogative statement and its legal consequences for legislators and the general courts


46th The Constitutional Court decided to draft II. Senate Constitutional Court to annul the entire
contested provision § 57 par. 1 of the Family Act. From this perspective
it emphasizes that the aforementioned grounds for revocation
do not dispute the constitutionality of the entire possibilities of popěrné action within six months of
when the husband learns that his wife just had a baby.
Grounds for derogation is not impinge on this authorization, which was not
not questioned either by the complainant, but to exclude
possibilities of this action after the expiry of that period. However
Constitutional Court can not grant the application only in words "six months"
therefore the extent to which the repeal of the contested provision demanded
complainant.

47th That procedure by the Constitutional Court created a new legal norm
which would allow the administration popěrné action regardless of the issue
protected rights and interests of persons other than the legal father of a child who's going to deny paternity
delimited in paragraph 29 of this judgment.
Derogatory finding would remove While violation of fundamental rights of the legal father, but would
founded another violation of fundamental rights protected
interests of other persons concerned.

48th As the Constitutional Court stated earlier, setting a deadline for submission of draft
denial of paternity is not in itself unconstitutional;
defining the term and conditions of the course, however, have a balanced manner
all concerned to respect the rights and interests protected.

49th Is it possible to think about that for a certain period of time should be the legal father
whose paternity was established by a legal presumption, have the opportunity to submit
for denial of paternity regardless of other circumstances (
fundamental rights and interests protected by defined in paragraph 29 of this judgment), as it is now
. In this case, however, a period of six months should be considered
unreasonably short, as well as determining the start of her run on the date when the
mother's husband learned about the birth of a child (§ 57 par. 1 of the
family) as is apparent from the reasons divorced above in paragraph 44. For example, in
Slovak Republic, the original 6 month period popěrná replaced
period of three years.

50th Even after so designed popěrné deadline can not be
option to deny paternity of a child by those people that may have justified interest
(as defined in paragraph 29 of this judgment), consisting mainly in the protection of their fundamental rights
, fully underwritten . Currently it allows
§ 62 of the Family Code file a petition for denial of paternity regardless of the passage of time
only the prosecutor, but only with regard to interest
child. As was stated in paragraphs 40 and 41 of this judgment,
this proposal could not be considered a sufficient means of protecting the rights
within the meaning of Article. 36 para. 1 of the Charter and the question is, what is the democratic legal order
law foundation. In that context, it is
interesting that for the first time this remedy appeared
in the legal order in force in the territory of present-day Czech Republic in the so-called.
Racial legislation (§ 2 para. 3 of Legislative Decree no. 180 / 1941 Sb., which
issued some regulations on disputes about ancestry or origin of the blood).

51st To ensure the protection of fundamental rights and interests protected
referred to in paragraph 29 of this judgment, it is therefore necessary to modify the proposal in a special way
denial of paternity, which will be filed in order to protect these
rights and interests protected by those concerned , including the legal father
child, whose special period for the proposal, which speaks above paragraph 49
already expired. When designing the admissibility of such a proposal will be
into account, in particular, whether the legal father of a child could learn about
facts that his paternity questioned whether even the knowledge of these facts
took legal action to deny his fatherhood and whether
denial of his paternity does not preclude - in a specific case, rather than a flat rate
- other protected interests, in particular the interest of the child to whom Article. 3.
1 of the Convention on the rights of the child recognizes the privileged - but not absolute - | || position. The legislature should therefore when setting the new deadline incident
to other presumption of paternity and other eligible entities

Into consideration the interests of all affected parties, with particular emphasis on
child's interest and stability of steady
family relationships and the need for family support for the child's upbringing. If the legislature modifies
possibility of breaking through the newly set a reasonably long periods in completely
specific and substantiated cases where the existing regulation confers
solely within the discretion of the Attorney General must simultaneously
clearly establish not only the conditions for such breaking period
but also the apparent limits to protect the rights of the child and mother.
Area for evidence in paternity disputes will need to adjust
procedural provision of means to capture
expertise in the field of health, genetics industry, conducted by
examination of DNA polymorphisms for compulsory participation of the putative father of the child and mother.

52nd Since therefore derogatory reasons not related to the possibilities of
popěrné action within the deadline set by the contested provision, but to the exclusion
its later application, with regard to the necessity of creating
sufficient time for comprehensive assessment and acceptance
new legislation, the Constitutional court under § 70 of Act no.
182/1993 Coll., on the Constitutional court that the provision was repealed on
31st December 2011.

53rd Finally, the Constitutional Court adds that an assessment of compliance
law or other legal regulation in proceedings under § 64 et seq. Act no. 182/1993
Coll., on the Constitutional Court, is projected into the plane only valid legal
provision but also to the plane of its applicability. The Constitution does not limit itself
protection of fundamental rights and freedoms in cases where the reason for their
violation involves the application of legal norms unconstitutional, only to cancel
such legal norms by the Constitutional Court, but the projection assumes
legal conclusions of the Constitutional Court in relation to the application of such a legal norm
public authorities. This conclusion is evident from the constant
Constitutional Court jurisprudence which permits the review also repealed the law
to the proposal of the court under Art. 95 para. 2 of the Constitution in case
concludes about his conflict with the constitutional order ; cf. eg.
finding sp. Nos. Pl. US 38/06 of 6. 2. 2007 (N 23/44 SbNU 279; 84/2007 Coll.).
In such a case, it is immaterial whether that law was abolished, but
whether the legal norms contained in the text is still applicable and
assessment of constitutionality is a prerequisite for a decision
court on merits. The Constitutional Court does not decide to cancel already canceled
law, but its applicability, and as a result
academic opinion on the conflict with the constitutional order is inapplicable
statutory provision is in conflict with the constitutional order
not only statutory provisions, ie. the legislative measure, but also its purpose
respectively. define the conditions under which the objective
legislature intended purpose can be achieved through constitutional procedures, ie.
direct application of the constitutional order see. Finding sp. Nos. Pl. US 35/08 of 7
fourth 2009 (151/2009 Sb.).

54th On these legal conclusions followed by the Constitutional Court in this case.
The potential consequence is the non-applicability of the law can not be limited only to the proceedings
on the draft general court under Art. 95 para. 2 of the Constitution,
but also applies to other cases in which the Constitutional Court finds inconsistencies
Act with the Constitution and relevant derogatory
due to the impact in terms of fundamental rights and freedoms on the legal status of individuals.
In the present case, moreover, is the complainant that submitting a proposal to repeal the law
together with a constitutional complaint, just watched his
protection of fundamental rights. The Constitutional Court therefore finds that the determination of
later annulment of the contested provisions of the law can not lead to the conclusion that
general courts must apply that provision to the extent to which
falls derogational reason, if the result of such an application could
lead to interference in the fundamental right or freedom party.

55th In relation to § 57 par. 1 of the Family Code, this means that
if the legal father whose paternity was established on the basis of the first
presumption of paternity, learns really questioning his biological fatherhood during or
the deadline for filing popěrné action
general courts are obliged not to apply the said period and objectively assess

The present action even if it is filed after its expiry.
Non-application of this time limit does not mean unlimited duration of the action.
The Constitutional Court has found unconstitutional because the very existence of the deadline, but in
exclude the possibility of a legally relevant way to challenge the legal paternity
. If the general courts will decide on the application in question,
they will have in their decision not to consider the question of paternity, but even
question of the rights and interests protected outlined above in paragraph 29
award. Up until the new legislature will decide on the definition of deadlines for
denial of paternity, it means also to assess whether action
with regard to the timeframe of the findings of the relevant facts to challenge paternity
stand in terms of proportionality of interference
protected the rights and interests of others.

Chairman of the Constitutional Court:

Pavel own hand

* Note. ed .: Collection of Decisions of the Constitutional Court, volume 44, judgment
no. 33, pp. 399