In The Matter Of The Application For Revocation Under The Law On The Execution Of Institutional Care

Original Language Title: ve věci návrhu na zrušení části zákona o výkonu ústavní výchovy

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=58320&nr=476~2F2004~20Sb.&ft=txt

476/2004 Sb.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 30 November. June 2004 in plenary on the proposal of the President of

the Republic to repeal § 5 para. 1 the last sentence, § 8 para. 4 and § 41

paragraph. 2 Act No. 109/2002 Coll. on the execution of institutional care or protective

education in school facilities and on preventive educational care in

school facilities and amending other laws,



as follows:



The provisions of § 5 para. 1 the last sentence as: "in particularly justified

cases, if required by the interests of the child, the child is placed outside the unit to

the contracting of the family ",



§ 8 para. 4 in the text: "Diagnostic Institute of contractually ensures cooperation

with the families. Through these families are

managed by the diagnostic tasks of the Institute especially for children who

staying in the team is not appropriate. The selection and preparation of the families, the way

cooperation and control provides a diagnostic Institute under the

The Ministry of labour and Social Affairs "



and § 41 para. 2, as amended by: "the Ministry of labour and Social Affairs sets out the

by a decree of the details for the selection and preparation of families, details

the way cooperation and control of these families with diagnostic

the Institute ", Act No. 109/2002 Coll. on the execution of institutional care or

protective care in school facilities and on preventive educational care

in educational establishments and amending other laws shall be repealed on the date of

the publication of this finding in the collection of laws of the Czech Republic.



Justification



(I).



Václav Havel, President of the Republic on 5. September 2002, in accordance with the

article. 87 para. 1 (b). and the Constitution of the Czech Republic) according to § 64 para. 1

(a). a) Act No. 182/1993 Coll., on the Constitutional Court, as amended

regulations, a proposal to repeal the last sentence of § 5 para. 1, § 8 para. 4

and § 41 para. 2 Act No. 109/2002 Coll. on the execution of institutional care or

protective care in school facilities and on preventive educational care

in educational establishments and amending other laws, the conflict with the articles

1, 4 and paragraph 79. 3 of the Constitution of the CZECH REPUBLIC and with article 4, paragraph 2. 2 of the Charter of fundamental

rights and freedoms.



Application for annulment of the above-mentioned provisions of the President of the Republic handed

(hereinafter "the appellant") against the possibility of abuse of the concerns referred to legal

adjustments to the detriment of the child, for the following reasons:



1. the provisions of § 5 para. 1 of Act No. 109/2002 Coll. (hereinafter the "Act")

introduces the possibility that the child was placed in the diagnostic Institute of contracting a family

Although this device, according to the decision of the Court, has taken over the responsibility for the

all the care of the child. The law does not define the terms family, does not contain

adjustment of the rights and obligations of the child and his biological parents, including

the scope of responsibility of the contracting of the family. Diagnostic Institute itself family

selects and enters into a contract with her about the upbringing of the child. In so doing, the Court of this change,

education of the child does not give consent. Placing the child in the family contract

the basis of the contract between the diagnostic Institute and the family, no

sufficient and complete legal adaptations, including judicial review, it is considered

the applicant for intervention in the protection of fundamental rights and freedoms of the child in the

meaning of article 87(1). 4 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and article. 32 para.

1 and 4, of the Charter of fundamental rights and freedoms ("the Charter").



2. The contested Law introduced into the legal order of the Czech Republic a new Institute

the contracting of the family, without defining its contents more closely and established rights and

the obligations of the members of the family and the child's contract, as well as the relations between the Contracting

family, diagnostic and legal representatives of the child by the Institute. As to the concept of

very vague, its contents cannot be filled with common interpretative

procedures. The requirement of certainty or do not meet the conditions under which the child

can be placed in the family contract. Terms such as "in a particularly

justified cases "and" if required by the interests of the child ", albeit partially

concretized by the term ' children stay in the team is not suitable ",

are so vague that it is not even at best will qualify as a

statutory limits the discretion of the diagnostic of the Institute.



3. the family has, under section 8 (2). 4 of the Act, provide the environment

(for 8 weeks) and secure diagnostic tasks of the Institute

laid down in § 5 para. 2 of the Act, i.e. tasks, diagnostic, educational,

therapeutic, educational, and social. In the Act are not set out the requirements

the members of the family, as the contract e.g. the pedagogical and

nepedagogických workers educational facilities. Definition of the terms family

as the law conceives, is totally indeterminate, is contrary to the principle of

legal certainty, and thus the principles of the rule of law. Contrary to

This law with article 1 of the Constitution, which States that the Czech Republic is

the democratic rule of law based on respect for the rights of man and of the citizen.



4. Pursuant to § 41 para. 2 of the Act is the Ministry of labour and Social Affairs

Decree to establish the nature of the contract between the diagnostic Institute and

Contracting family, its contents, the scope of rights and obligations, or what

the consequences of both Contracting Parties, and on the child and his parents

they are incurred. The proposed Decree would therefore necessarily had to have permission and

procedures that will require legal modification. Such authorisation

It is in direct conflict with the article. paragraph 79. 3 of the Constitution, according to which the Ministry of

on the basis and within the limits of the law to issue legislation if they are to

It empowered. The Constitution allows lawmakers to seize authority of Executive

can start to perform the Act of prescription podzákonný. Implementing regulation

must be in accordance with the law, to which it relates, shall be issued on his

the basis and within the limits. The premise is therefore that the law contains

the basic framework for podzákonný prescription.



5. placement of children in legislation the contracting family is contrary to article 4 of the

paragraph. 2 of the Charter, which stipulates that the limits of fundamental rights and freedoms can

be, under conditions laid down by the Charter, modified only by law.



II.



In accordance with the provisions of § 69 para. 1 Act No. 182/1993 Coll., on the constitutional

the Court, in the wording of later regulations (hereinafter referred to as the "law on the Constitutional Court")

the Constitutional Court has requested representation of the Chamber of Deputies and the Senate

The Parliament of the United Kingdom as parties to the proceedings.



For the Chamber of deputies of the Parliament of the United Kingdom has submitted an expression of her

the President of PhDr. Lubomír Zaorálek. Summarize the substance of the proposal and

He stated that the last sentence of article 5 (3). 1 of the contested act introduces

in the field of institutional care option to diagnostic Institute placed the child

in terms of the family. The other challenged provisions of the Act, this new

the Institute also carried out. Act No. 109/2002 Coll., was passed after duly

completion of the normotvorném process, signed by the relevant constitutional

officials and he was named in the statute book. The legislature at a time when

tagged law, acted in the belief that the law is in accordance with the

The Constitution of the CZECH REPUBLIC, the constitutional order and laws of the United States. It is on the

The Constitutional Court, in the context of the examination of the application for revocation

assess the constitutionality of the provisions of the mentioned law and issued the

the relevant decision.



The Senate of the Parliament of the United Kingdom has submitted an expression of its Chairman JUDr.

Petr Pithart. He stressed that all the provisions of the law, designed to

cancellation, relate to contractual Institute of the family. With regard to the majority

the will of the Senate said in favour of the draft submitted by the President of the Republic

These arguments:



The Charter of fundamental rights and freedoms in article. 32 para. 4 second sentence expressly

provides that the rights of parents may be limited and minor children may be

separated from their parents against their will, only by a court decision on the basis of

the law. In accordance with this principle, the Court ordered institutional care

of the child (article 46, paragraph 1, of the law on the family), the Court imposes protective education

juvenile (article 84, paragraph 1, of the Criminal Code), the Court also ordered the handover of

the child in the care of another person, if the minor child without any

care or if his life or the positive development seriously threatened or

disturbed (section 103, paragraph 1, of the judicial code). The Court's decision is

also to the child in foster care (section 45a (1) of the Act

the family) and to the adoption of a child (article 63, paragraph 2, of the law on the family). Also,

suspension of the limitation or deprivation of parental authority requires

the decision of the Court (section 42 and section 44 of the law on the family). By contrast, the

provisions of the Act challenged the President allow the

diagnostic Institute, on the basis of unspecified contracts and without

the Court decision has placed the child in the family, and thus the contract de facto changed

the Court's decision on the regulation of institutional care or imposing trade

education.



In this context, to refer to the Constitutional Court, published under no.

72/1995 Coll., which the Constitutional Court annulled the provisions of § 46 of the family code

at the time, as amended and section 19 para. 1 (b). and) of law No. 114/1988

Coll. on scope of bodies of the Czech Socialist Republic in social

security, to allow the District Office decide in urgent

cases of immediate placement of children in alternative education, substituting the

educating parents on the amount of time before the Court.



III.



In accordance with the provisions of § 42 para. 3 of the law on the Constitutional Court was a proposal from the

also sent to the Ombudsman. According to his extensive observations are


the provisions of § 8 para. 4 and § 41 para. 2 of the Act in violation of the provisions of the

article. 1 and article. paragraph 79. 3 of the Constitution and article. 4 (4). 1 and 2, article. 7 (2). 1, art.

10, paragraph 1. 2 and article. 32 of the Charter, as they represent an illegal delegation of the

standardisation on the Executive Authority (the Ministry of labour and Social Affairs) and

allow a revision of the limits of fundamental rights and freedoms of podzákonnou legal

norm.



Article 79 paragraph 2. the Constitution empowers the Ministry to issue legislation

only on the basis and within the limits of the law. Restrictions on the delegation of standardisation

is one of the traditional and the key aspects of the separation of powers and the system of checks and

mutual balance. Therefore, even the constitutional order of the Czech Republic allows

lawmakers, under certain conditions, possession of executive authorities to issue

secondary legislation. The mandate must be explicit and content

podzákonného Regulation shall be in accordance with the law, that performs.

However, if Parliament resigns to set limits and blanketně empowers the

Executive to say what is right, what are the rights and obligations of the

people or what are the powers and responsibilities of the administrative offices, then

infringes the principle of limited standardisation and so violates the delegation and the principles of

the separation of powers.



In this context, the Ombudsman also noted that the Constitutional

the Court has already dealt with these issues and pointed out, in particular, to find no Pl.

TC 35/95, published under no. 208/1996



In the same vein, the delegation of regulatory powers on issues of Constitutional

the Court held in finding SP. zn. PL. ÚS 45/2000, published under no.

96/2001 Coll., and in finding SP. zn. PL. ÚS 5/01 (no 410/2001 Coll.).



In the provisions of the law, which is designed, introduced into Czech

rule of law the concept of "contracting a family" without closer defined. Limits,

by the legislature for the Ministerial Decree and the decision making

diagnostic institutes about the placement of a child into the family's contract

only that it will be a particularly justified case, and that this will require

interest of the child. Elsewhere, the law States that the offended pride.

of the families can be placed children, for which a stay in collective

It is not suitable. More provisions on family law Institute of the Contracting

does not contain, and empowers the Ministry of that Decree lays down the

"the details for the selection and preparation of families and details

cooperation and control of these families ".



Due to the very limited adjustment in the Act, it is clear that rather than provide

the details of the decree would have had to modify the basic elements of this completely

the new Institute. He resigned from the legislature on the definition of the objective and purpose of the

education and child care in contracting family (whether on a temporary, care

bridging or vice versa for the long term, even with the possible prospect of

the future of adoption). Mode is not set out "contract" on the placement of children in

the contracting of the family, are not defined its basic elements, basic

the rights and obligations of the parties, is not to define the term contracting of family and

It is not stated who can't be contracting his family. Not provided

the contractual obligations of the members of the family and is not defined by their responsibilities.

The law does not set any qualifications for members of the

families, for example, does not require that their mental capacity was

detected psychological examination, as is the case for teaching

personnel equipment (cf. paragraph 18 and 19 of the law), or to

have passed the necessary training. Are not defined the rights and obligations of the child

placed in such Contracting family. Missing the kinship between the Contracting

the family, the child and his legal representatives (parents). Is not modified.

the scope, amount and method of payment for the costs of care in the performance of contractual family.

The scope is not regulated Ministry over families, are not

adjusted penalties for violation of the obligations in the exercise of care in Contracting

the family of missing supervision over compliance with legislation, etc. From this

enumeration of the Ombudsman therefore makes it clear that the rights

and responsibilities of the persons involved in this Institute and the powers of the administrative

authorities would have to be laid down by Decree of the Ministry, to make this

the Institute could become functional at all.



Institute of contracting family is set in the context of the performance of institutional care

or protective care. In its framework to invoke the rights of parents and

children separated from each other by a court decision, often against their will.

The decision on the placement of the child diagnostic Institute in terms of the family

without a doubt the further encroachment on the right to respect for family and

the private life of the child and the family (article 8 of the Convention for the protection of human

rights and fundamental freedoms). Adjustment of the fundamental rights and freedoms is

However, in accordance with the provisions of article. 7 (2). 1, art. 10, paragraph 1. 2 and article. 32 of the Charter,

reserved Act. You can also apply the general principle expressed in article. 4

paragraph. 1 of the Charter, according to which the obligation can only be based on the

and within the limits of the law and only in the preservation of fundamental rights and freedoms.

Therefore, you cannot admit that the rights and obligations of persons involved in the

This Institute, established by other legislation than by law. Otherwise the

sphere of fundamental rights and freedoms came under the jurisdiction of the Executive, which

such powers is not entitled (cf. find SP. zn. PL. ÚS 35/95).

Also, you cannot admit to podzákonný legislation defined the cases

the limits and ways in which you can apply the power of the State against persons

participating at the Institute of family contract (article 2, paragraph 3, of the Constitution).



The Ombudsman pointed out that the provisions of the Act, which is

the adaptation of these questions entrusted to the Decree of the Ministry, are in contradiction with the

the provisions of the article. 1 and article. paragraph 79. 3 of the Constitution and the provisions of article. 4 (4).

1 and 2, article. 7 (2). 1, art. 10, paragraph 1. 2 and article. 32 of the Charter, and should therefore

the Constitutional Court be cancelled.



According to the Ombudsman are to the provisions of § 5 para. 1 the last sentence

and § 8 para. 4 of law in breach of article. 1 of the Constitution of the CZECH REPUBLIC, according to which the United

Africa the democratic rule of law, as they are vague. He added that the

According to the constant case law of the Constitutional Court is one of the principles

the rule of law principle of legal certainty and the resulting requirement to

the clarity and certainty of the law. In this context, to refer to the find SP. zn.

PL. ÚS 16/93, published in the St. 1. The collection of findings and resolutions of the constitutional

Court, c. h. BECK, Prague, 1994 under no. 25.



Vague definition of contracting family Institute. is also reflected in the

the provisions of § 8 para. 4 of the Act, which States that through the

of the families "safe diagnostic tasks of the Institute". Can you just

difficult to imagine how the family would be able to ensure the Contracting

tasks, diagnostic, educational, therapeutic, educational and social,

organizational, related with placing the children into the device, and finally

the task of coordination (cf. Article 5, paragraph 2, of the Act). As for the tasks

very professional, provided by a team of experts in diagnostic institutions,

that is for the fulfilment of these tasks entrusted to a number of powers and they even

ensure material. Also the conditions under which a child can be placed

in terms of the family ("in particularly justified cases, if required

interest of the child "), have been formulated too vaguely. The intensity of this

the uncertainty is so high that it excludes the possibility of establishing a normative

the content of the provisions, even with the usual interpretation.



According to the conclusion of the Ombudsman, the Constitutional Court should the provisions of the

the law relating to contracting Institute family canceled because of its

the uncertainty are contrary to the provisions of article 8(1). 1 of the Constitution.



The introduction of the Institute of family into the Act of contracting the performance of constitutional or

protective care is, according to the Ombudsman, a foreign element, which

outside the spirit and purpose of the Act, i.e. Edit the performance of institutional care or

protective care in school facilities. The proponents of amendment

the proposal, which has been contracting in the text of the family Institute of law incorporated,

apparently inspired by the Slovak by modifying the contained in Act No. 195/1998.

on sociálnej help. Pursuant to section 26 of this Act, may children's home

provide care in families for professional performance of foster care (called.

a professional surrogate family) that provide the care and upbringing of children in the

own family environment, including children's home. Unlike the United

adjustments to the so-called. the contracting of the care family children's home provided by the

professionals-the children's home staff in its own family

environment. A professional parent receives a salary for his work, his work is

managed and controlled and has to take the job.



According to the Ombudsman's mandate also raises doubts

The Ministry of labour and Social Affairs to issue a decree about the details

for the selection and preparation of families and on the modalities of cooperation and

control of these families with a diagnostic institution. Central

State authority for educational facilities is, according to the provisions of §

the competence of the law (law 7 No 2/1969 Coll., as amended

regulations) the Ministry of education, youth and sports, which is also

Central Administrative Office for institutional and protective upbringing in

school facilities (cf. section 4 (6) of the Act). It is therefore

incomprehensible why the details of the organizational diagnostic procedure

the Institute for the adoption, placement, relocation and dismissal children has


the decree set the Ministry of education, youth and sports (§ 5

paragraph. 13), while the details for the selection and preparation of families,

the details of the cooperation and control of these families with

diagnostic Institute, to be determined by a decree of the Ministry of labour

and Social Affairs.



IV.



In accordance with the provisions of § 42 para. 3 of the law on the Constitutional Court was

as requested by the Ministry of education, youth and sports, and

The Ministry of labour and Social Affairs.



The Ministry of education, youth and sports, agrees in principle to

the conclusions of the applicant relating to the Institute of the so-called. "Contracting",

introduced into the Czech legal order by Act No. 109/2002 Coll., on the maintenance

the provision was not part of the Government's proposal, but was complemented by the way

When discussing the draft amendments of the Act in

The Chamber of deputies of the Parliament of the Czech Republic. Education of children and youth

in "of the families" could be an appropriate form of care for children and

Youth, another question is, however, this educational entrenchment of the forms in the Czech

legal system, which is currently very problematic.



Firstly, the legislation is missing from this Institute in the Act. The law does not contain

the definition of this concept, the definition of requirements for the contracting of the family,

defining their rights and obligations, but also rights and responsibilities of children, the relationship

between the family and the diagnostic institution. It is therefore a vague

the notion that the law does not define at all, only in § 41 para. 2 refers to

the implementing decree, which the Ministry of labour and Social Affairs

lay down details for the selection and preparation of families, details

cooperation and control of these families with a diagnostic institution.



If the law empowers the Ministry of modifying something in the Act itself

edited, this provision is not in breach of article. paragraph 79. 3 of the Constitution. In

this case is not about the implementation of the law, but on its completion for the

the situation, when the relevant legislation is missing, you should decree

to do this.



The contested provisions of Act No. 109/2002 Coll., on the family, contrary to the contract

whether or not the provisions of the article. 2 (2). 2 and article. 4 (4). 1 of the Charter, according to which the

State power can be exercised only in cases and the limits which it lays down

the law, in a way, that the law provides for and obligations can be

saved only on the basis and within the limits of the law. The law envisaged

the Ordinance would, in the definition of the Institute, she undoubtedly contain

(I) the determination of the contracting family in relation to the child and

diagnostic Institute, which, however, do not have the necessary basis in the form of

positive legal provisions.



The law also lacks any provision for judicial ingerenci. In doing so,

According to the article. 32 para. 4 of the Charter rights of parents may be limited and minor

children may be separated from their parents against their will, only by decision of the

Court on the basis of the law. According to the article. 4 of the Constitution, fundamental rights and

freedom under the protection of the judiciary. The law provides that a child would be

placed in the family contract only on the basis of the contract concluded between the

family and diagnostic Department, without any control by the Court and

the legal base. General contractual freedom Institute participants

contractual relations would allow the unlimited possibility of Contracting Parties to the

to agree, in principle, any condition of education in families,

Thus there was a violation of the Czech Republic, arising from

international legal normative acts (see for example. The European Convention on

children's rights-MINISTRY of FOREIGN AFFAIRS notice No 54/2001 Coll.).



The Ministry of education, youth and sports, in the framework of the methodological

activities, has developed a guideline for the placement of children with ordered institutional

education or stored in protective care of families. According to the article.

I, item 2) this guideline until the publication of a notice of the Ministry of labour and

Social Affairs within the meaning of § 41 para. 2 Act No. 109/2002 Coll.

diagnostic of the Constitution placed the children with ordered institutional education or

imposed protective care only to educational institutions for the performance of

institutional education and protective education pursuant to § 5 para. 1 the first sentence of the law

No 109/2002 Coll., this will ensure that, until the

the situation is resolved in the plane of the legislation, it will not be the assignment of the contractual

families take place.



In the.



According to the Ministry of labour and Social Affairs, the provisions of § 5

paragraph. 1 the last sentence, § 8 para. 4 and § 41 para. 2 Act No. 109/2002

Coll., are in conflict with the Constitution and the Charter, because based

diagnostic Institute child under contractual permission to place family. In doing so,

are not defined by law, mutual legal relations between the diagnostic

the Institute, the family, the child and the legal representatives of the child. Completely

leaves out the fact that the Court's decision to place the child in the constitutional

care shall be amended by agreement of several people without such negotiations have been

established legal rules. In this case, it is not excluded that the

child, entrusted to the Court decision in institutional care, on the basis of

the intended agreement between the head of diagnostic Department and persons

forming contractual family, family, whose environment is for a child

non-compliant. For comparison, the Ministry recalls the adjustment to the position and

obligations of the adoptive parents and foster parents, adoptive parents and future respectively

foster parents. This is the full extent of modifying the legal, not

podzákonnou.



An unacceptable legal situation described above can't solve or decree

The Ministry of labour and Social Affairs, which assumes the section 8

paragraph. 4 and § 41 para. 2 of the Act. Estimated the decree would have to

include the determination of the contractual obligations of the members of the family, for example. the obligations of the

to participate in preparation for the care of the child, the obligation to disclose certain personal

information, the duty to cooperate in the implementation of the inspection and also

determination of different responsibilities associated with the selection and contracting of the family

the actual care of the child. By enshrining the obligations referred to in the Decree

The Ministry of labour and Social Affairs on the basis of generally formulated

empowerment § 8 paragraph. 4 and § 41 para. 2 of the law would be in violation of the article. 4

paragraph. 1 of the Charter, according to which the obligation can be imposed only on the

under the law and within the limits. Provisions of the Act in question are not

needed basis, which would set the limits within which the detailed

the decree to move. The provisions of § 5 para. 1, § 8 para. 4 or § 41

paragraph. 2 of these limits cannot be inferred.



Finally, the respondent Ministry is of the opinion that the mandate of the Ministry of

labour and Social Affairs to issue a Ordinance is defective in terms of Act No.

2/1969 Coll., on establishment of ministries and other central bodies of the State

administration of the Czech Republic, as amended. Within the meaning of section 8

paragraph. 4 the contested law to be through contractual families

diagnostic tasks managed by the Institute. Act No. 2/1969 Coll. in

the provisions of § 7 of the ranks of the establishments in the scope of the Ministry of

education, youth and sports, and not the Ministry of labour and

Social Affairs.



Vi.



The Constitutional Court has taken as the Fund vulnerable children. The Fund shall

does with the arguments of the applicant in that the new Institute, the Contracting

the family constitutes the protection of fundamental rights and freedoms of the child,

or that is contrary to the principle of legal certainty, and thus the principles of the rule of

State. Not worried that this legislation can be exploited in

detriment of a child to a greater extent than is now possible, exploit system

institutional care (e.g. educational measures or punishment, consisting in the

the ban on visits to the child's parents). It also does not consider that more

the conditions of the functioning of families could not provide the Ministry of labour

and Social Affairs by Decree, as the law allows. The Fund vulnerable children

considers that the constitutional complaint of the plaintiff is not warranted because the

the legal position of the child in the family contract do not change, remain subject to the

the basic principles of the regime of institutional care. Responsibility and control over

the child still belongs to the constitutional device. Nothing changes, not even on the options

the contact of the child with his family.



VII.



Pursuant to § 68 para. 2 of the Act on the Constitutional Court, as amended

legislation, the Constitutional Court in proceedings for the annulment of laws or

other legislation shall be assessed in terms of the content of these regulations

their compliance with the constitutional order and to determine whether they were adopted and

within the limits of the Constitution provided for issued and constitutionally prescribed

way. From the observations of both chambers of the Parliament of the Czech Republic, as well as from the

sent by the Council prints and data on the course of the vote, it is clear that

Act No. 109/2002 Coll. was adopted and issued by the constitutionally prescribed way and

within the limits of the competences laid down in the Constitution.



The Bill, which the Chamber of Deputies agreed on 6.

in December 2001, was ceded to discuss Senate on 19 December. December 2001.

The plenary of the Senate discussed the Bill on 17. January 2002 on its 13.

meeting and resolution No. 263 draft law rejected. The Chamber of deputies of the

the Bill voted again on its 46. meeting of 5 November. February 2002 and

resolution No. 2016 bill approved. President of the Republic then

the adopted law returned, but the Chamber of Deputies on the law remained (see


resolution No. 2121 from 47. the meeting on 12 June 2006. March 2002).



After examining the proposal submitted by the President of the Republic, and after considering all

circumstances, arrive at the plenary of the Constitutional Court concluded that the proposal is reasonable.



All provisions of the Act that the applicant is proposing to repeal, relate to

the Institute of the family, which was contracted to the legal order of the Czech Republic

introduced by Act No. 109/2002 Coll.. Those provisions were not included in

the Government's draft law, but was incorporated into the Act on the basis of

of the initiative during the discussions by the

Deputies of the Parliament of the Czech Republic.



The first provisions of the Act whose annulment is designed, it is the last sentence of

§ 5 para 1, which reads: "in particularly justified cases, if required

interests of the child, the child is placed outside the facility to the contracting of the family. "



In the interest of completeness, it should be noted that the provisions of § 5 para. 1 of law No.

109/2002 Coll., defines the diagnostic Institute as a device that accepts

to the care of children (see § 2, paragraph 3, 4 and 5 of the same Act), which was

ordered institutional care or imposed protective education, children

the interim measure was ordered to provide care for minor children

under section 76a code of civil procedure (hereinafter referred to as "CCP"). The Institute also

accepts under the care of the children who are not citizens of the Czech Republic and meet the

the conditions laid down in § 2 paragraph 1. 2 and 3 of Act No. 359/1999 Coll., on social

legal protection of children.



Diagnostic Institute accepts to the care of children, which is also the location in the

as a result of their behavior disorders, have requested those persons responsible for upbringing (§

7 (2). 1 of the law).



Based on the results of the comprehensive examination, the health status of children and

free capacity of each device is a diagnostic Institute is placed into

children's homes, children's homes, with a school or educational institutions, with

the exception of the children taken to the diagnostic of the Institute on the basis of § 7 para. 1

the law. Those preventive educational care is provided under section 16 of the Act.



The last sentence of article 5 (3). 1 of the Act, whose cancellation is

proposed, then introduces the possibility that the child was placed into the diagnostic Institute

the contracting of the family "in particularly justified cases, if required by the interests of the

of the child ". This permission so the diagnostic Institute covers

all the children listed above, except for children placed under § 7 para. 1

the law.



Placing a child in a family on the basis of the contractual agreement between the

diagnostic Institute and the family, without sufficient and complete legal

editing, including judicial review, the Constitutional Court shall be considered as intervention in the

fundamental rights and freedoms of the child within the meaning of article 87(1). 4 of the Constitution and article. 32 para. 1

and 4 of the Charter. According to the article. 4 of the Constitution, fundamental rights and freedoms under the

the protection of the judiciary. Article 32, paragraph 1, of the Charter guarantees special

the protection of children and adolescents, so that the rights of parents can be restricted and

minor children may be separated from their parents against their will only

by decision of the Court on the basis of the law (article 32, paragraph 4, of the Charter). About

removal of a child from the care of the parents, the Court may decide, therefore, only. In

compliance with this principle, therefore, only the Constitutional Court orders the child's upbringing

(article 46, paragraph 1, of the law on the family). If so, the child goes first to the

diagnostic Institute, which then will decide on his next location to

the children's home, children's home, school or educational institution,

as pointed out above.



Likewise, the only court orders delivery of the child to the care of another person,

If you found a minor child without any care or if his life

or the positive development seriously threatened or disturbed (section 76a (1) CCP).

The Court's decision should also be to the child in foster care

(section 45a (1) of the law on the family) and to the adoption of a child (article 63, paragraph 2,

the law on the family). Also the suspension, restriction or deprivation of parental

responsibility requires a court decision (article 42 and article 44 of the law on the family).



Top cited the provisions of § 5 (1) of the Act allows a diagnostic

the Institute, on the basis of unspecified contracts and without a court decision,

He placed the child in the family, to contract such a family alone and

has entered into a contract with her about the upbringing of the child. This is a change of educational

environment of the child, on which the Court does not act, that does not make any

consent. This diagnostic can effectively Institute change the decision of the Court of

Regulation of institutional care or imposing protective care.



Therefore, if the Act newly entrusts to the hands of a diagnostic of the Institute the power to

place the child in the family, the contract of education other than natural persons

the parents, there is a significant interference with the jurisdiction of the Court.

Agreement diagnostic Institute, the family actually amended statement

the Court which ruled on the regulation of institutional care. The provisions of § 36 of the Act

even excludes the administrative code for making a diagnostic Institute

According to § 5 para. 1 of the law. Procedural status of the parties, or

procedure according to § 5 para. (l) of the Act, is so limited compared to the

procedural status of the parties, when a child in the custody of

other natural persons shall be decided by the Court pursuant to section 45 of the law on

family. The child would be placed in the contract only on the basis of family

the contract concluded between the selected family and diagnostic Institute, without

any legal base and without judicial review.



To place the child in the family, according to the contested provisions of contract law

It can therefore occur only on the basis of the contract, without such negotiations have been

clear legal rules. In such a case is not excluded

the possibility of the child, entrusted to the Court decision in institutional care, gets

on the basis of an agreement between the Institute and Director of the diagnostic entities

forming the contracting family in an environment that will be for the child

non-compliant.



This legislation violates the obligations of the United States, and the resulting

in particular, from article. 9 of the Convention on the rights of the child (see FMZV communication No. 104/1991

SB.). According to this article, paragraph 1: "States which are Contracting

party to the Convention shall ensure that a child could not be separated from their parents

against their will, unless the competent authorities, on the basis of the

decision and in accordance with applicable law and in the relevant proceedings, determines that

such separation is necessary in the interests of the child. Such determination may be

necessary in a specific case, for example, in the case of abuse of

or neglect of the child by the parents, or if the parents are living separately and need to

decide on the place of residence of the child. "



There was also a breach of the obligations arising for the Czech Republic from

The European Convention on the exercise of children's rights, adopted in Strasbourg on 25 April. January

1996, on behalf of the United States that was signed on 26 April. April 2000

(see communication from the MINISTRY of FOREIGN AFFAIRS No. 54/2001 Coll.). With this Convention ratified

Parliament of the Czech Republic and the President of the Republic has ratified the Convention.

Convention entered into force, pursuant to article 21, paragraph 2. 3 on 1 May 2004.

July 2000. For the Czech Republic entered into force in accordance with paragraph

4 of the same article of the day 1. July 2001.



When ratifying the Convention was made the following declaration by the Czech

States:



"The Czech Republic hereby declares, pursuant to article 1 (1). 4 of the European Convention on

the exercise of the rights of children, adopted in Strasbourg on 25 April. January 1996, that this

the Convention shall apply to the procedure for adoption of the child to the

foster care and the restriction or deprivation of parental

responsibility, as well as on all other proceedings in matters of family, which

affect the rights of the child. "



According to the article. 1 (1). 3 of the European Convention, "for the purposes of this Convention the expression

the court proceedings, which involves a child, means proceedings in family matters,

in particular, in which it comes to the exercise of parental responsibility, questions of

stay and the rights of the child ". According to the article. 2 (2). 1 this Convention then

the term "judicial authority" means any court or administrative authority having equivalent

powers.



Another provision of the Act whose annulment is designed, is § 8 para. 4

the law, which provides that: "the diagnostic Department contractually ensures

cooperation with the families. Through these terms

families are managed by the diagnostic tasks of the Institute, in particular, for children, for

where to stay in the team is not appropriate. The selection and preparation of the

families, the way cooperation and control provides a diagnostic Institute according to

Decree of the Ministry of labour and Social Affairs. "



As has already been stated above, the provisions of the Act, which is

designed, introduced into the Czech law the concept of "Contracting family", which

However, the closer does and its provisions are vague in this respect.

Thus, according to the conclusion of the Constitutional Court, in breach of article. 1 of the Constitution of the CZECH REPUBLIC,

According to which the Czech Republic is a democratic rule of law. According to the

constant case law of the Constitutional Court is one of the principles of the rule of

State the principle of legal certainty and the consequent requirement for clarity and

the certainty of the law (see find SP. zn. PL. ÚS 16/93, published in the St. 1.

Collections of the findings and resolutions of the Constitutional Court, c. h. BECK, Prague, 1994 under no.

25). However, the uncertainty of law itself to conclude its neústavnosti

It is not sufficient, as is clear from the finding SP. zn. PL. ÚS 9/95 (published under no.

16 in St. 5. Collections of the findings and resolutions of the Constitutional Court). Here The Constitutional


the Court found that "the uncertainty of any of the provisions of the legal

prescription to be considered rozpornou with the requirement of legal certainty, and

Hence, the rule of law (article 1 of the Constitution of the CZECH REPUBLIC) only if

the intensity of this uncertainty excludes the possibility of establishing a normative

the content of the provision and by using the usual interpretation. "

Provisions of the Act, proposed to the cancellation, said conditions being fulfilled.

Vague definition of contracting Institute appeared in family

the provisions of § 8 para. 4 of the Act, which States that through the

of the families "safe diagnostic tasks of the Institute". Can you just

difficult to imagine how the family could provide the contracting tasks

diagnostic, educational, therapeutic, educational and social,

organizational, related with placing the children into the device, and finally

the task of coordination (cf. Article 5, paragraph 2, of the Act). From this enumeration

It can be seen that it is a very technical tasks, provided by the diagnostic

institutions, which is a team of experts for the performance of these tasks entrusted to the

a number of powers and they even provided material. Also the conditions,

for a child placed in a family contract ("in particularly justified

cases, if required by the interests of the child "), are formulated too

vaguely. The intensity of this uncertainty is so high that it excludes the possibility of

determination of the normative content of the provisions as well as by using the usual

the interpretative procedures.



Article 8 (2). 4 and in the empowering provisions of § 41 para. 2,

that instructs the Ministry of labour and Social Affairs to lay down by Decree

the details for the selection and preparation of families and details

cooperation and control of these families, established by the legislature for the said

Ministerial Decree only very brief and vague limits, including

only closer adjustment:



-selection of the families



-preparation



-details of cooperation these families with the diagnostic Institute



-control of these families.



Otherwise the law talks about contracting a family only in § 5 para. 1 the last sentence of

(see above), where it gives diagnostic Institute may place the child in the

the contracting of the family:



-If this is justified in the case of particularly



-If required by the interests of the child.



More words about family law Institute of contracting does not. Due to this

fragmentary editing, it is clear that rather than the details of the decree would have had to

edit all the basic elements of this new Institute. The legislature

He did not elaborate whether he has to go on temporary care, bridging or long term, with

the possible future adoption of a perspective. Missing definition in the Act

the concept of "Contracting family" and the definition of requirements for this family.

Contracting family is not defined, nor positively, not negatively, i.e.. It is not

determined what the family for example. contracting a family can be. Missing definition

criteria and qualifications, Contracting family had

meet and how will it be validated the ability of the candidates-physical

people to ensure the proper care of the child in the family contract. It is not clear whether

It will be a contractual relationship only with spouses or with individuals, whether

and how to limit the number of children in the family one Contracting, etc.

Lack of any definition of the rights of persons caring for a child in the family and in the Contracting

the determination of the manner in which security is to be solved by material of a child in the

This family. It is also not stipulated in the contract which are to be

the person constituting the family against diagnostic Institute contract (in the account of the

coming labor or civil) and what type of contract can be with

diagnostic Institute closed. The basic requirements are set forth

This agreement and the basic rights and obligations of its participants, including

their responsibility.



From this enumeration makes it clear that the rights and obligations of persons and institutions

participating at this Institute and their powers would have to be

established by a decree of the Ministry of this Institute could become

functional.



This means that the provisions of § 8 para. 4 and § 41 para. 2 of the Act

they are in contravention of article 1 and article 79 paragraph 2. 3 of the Constitution of the Czech Republic

and article 4, paragraph 2. 1 and 2, article 7, paragraph 1. 1, article 10, paragraph 1. 2 and

Article 32 of the Charter, as they represent an illegal delegation of standardisation

on the authority of the Executive (Ministry of labour and Social Affairs) and allow you to

revision of the limits of fundamental rights and freedoms of the podzákonnou legal standard.



Article 79 paragraph 2. the Constitution empowers the Ministry to issue legislation

only on the basis and within the limits of the law. The impugned provisions of the Act

are in violation of this article of the Constitution, because the Ministry is empowered to

by adjusting something, for what the law provides no limits what he ever

It does not regulate. There would, therefore, about the implementation of the law, but about his

replenishment, since implementing regulation would Institute the contracting of the family had to

define precisely. Therefore, the relevant legal provision is missing, you should

Ministerial order to perform. The law of stručností and its uncertainty

does not give the necessary basic framework for that podzákonný prescription.



For the security of an efficient public administration, it is appropriate to leave

edit details podzákonnému law, which can be

be made more operational change. Therefore, even the constitutional order of the Czech Republic allows

lawmakers, under certain conditions, possession of executive authorities to issue

secondary legislation. However, the mandate must be explicit and

contents of the podzákonného Regulation shall be in accordance with the law, which

carried out, it must therefore be made on the basis and within the limits. If

However, Parliament resigns on the determination of the relevant framework and blanketně

empowers the Executive to establish what is right, what are the rights and

obligations of persons or what are the powers and responsibilities of the administrative authorities,

then violates the principle of limited delegation of standardisation and violates and

the principles of separation of powers, provided for mj. in the in the article. 2 (2). 1 of the Constitution.



Restrictions on the delegation of standardisation is one of the traditional and the key aspects of

the separation of powers and the system of checks and mutual balance, on which it is built and

the constitutional order of the Czech Republic. The legislature in a system of separation of powers

fundamentally unable to delegate his powers to another body, entrust it to

other hands. The envisaged implementing decree would have to determine the persons

representing a variety of contracting family obligations, in particular, to participate in the

preparation of custody, to disclose certain personal information (apparently including

health status), to cooperate in the implementation of the checks, this check

submit to, etc.



In accordance with article 4, paragraph 2. 1 of the Charter can be stored only on the obligations

under the law and within the limits. The anchoring of the obligations referred to in

the implementing Decree of the Ministry of labour and Social Affairs, on the basis of

empowerment § 8 paragraph. 4 and § 41 para. 2 of the Act, therefore, had breached the conditions

article article 4, paragraph 2. 1 of the Charter.



The impugned provisions of the Act are contrary to the constitutional principles

Bye-standardisation, defined by the Constitutional Court of the Czech Republic

in particular, in findings published under no 410/2001 and no. 96/2001 Coll.

These Constitutional Court held that the derived normotvorba Executive must

respect the principles set out below:



1) podzákonný prescription must be issued by an authorized body,



2) podzákonný prescription must not interfere in the Affairs of the designated law



3) must be obvious will of the legislator to modify the above the legal standard.



According to the case-law of the Constitutional Court may not be established

by law, since the requirement that any obligation was established directly

and exclusively by law, would "clearly led to the absurd, and the

the denial of the meaning of a secondary standardisation, since the conceptual part of every

the legal standards is the definition of certain rights and obligations of the addressees of standards "

(cf. find no 410/2001 Coll.). Podzákonný prescription, however, must always

move within the limits of the law, that are either explicitly defined, or

arise from the meaning and purpose of the Act. On the basis of legal authorization has

the implementing regulation to instantiate the issue modified in the basic

features already by this law, but must never go outside the law.



The contested act, the provisions of § 8 paragraph. 4 and § 41 para. 2, top

has not adhered to these principles. The definition of family in the law of contract is

indeterminate. Just as uncertain are the conditions under which a child can be to

the contracting of the family place ("in particularly justified cases, if required

interests of the child "). The intensity of this uncertainty is so high that

determination of the content of the normative rules out the possibility of the provisions by

the usual interpretation. This is contrary to the principle of legal certainty

and the principles of the rule of law. Contrary to these provisions

law with article 1 of the Constitution, which provides that "the Czech Republic is

the democratic rule of law based on respect for the rights of man and of the citizen ".



In accordance with article 3, paragraph 3. 1 of the Convention on the rights of the child "the child's interest must be

a primary consideration in all actions concerning children, whether

carried out by public or private social welfare institutions,

courts, administrative or legislative bodies ". In the light of this

the provisions of the Convention, the Constitutional Court is of the opinion that the legislation the selection,

preparation and monitoring of the families must pursue one fundamental objective, and


This protection of the child in that direction to care within the contract families

did not suffer any injury. All the important issues concerning the protection of

interests of the child, were not yet regulated by law and there is no reason why the

in the case of families should be able to support only podzákonná

Edit.



In accordance with the provisions of section 44 para. 2 of the Act on the Constitutional Court all

the participants in this proceeding agreed that the Constitutional Court refrained from

the oral proceedings in the case. In this situation the plenary Constitutional process

the Court decided, out of the hearing and without the presence of the participants, 30 July 2004.

June 2004. Finding, issued pursuant to section 70 para. 1 of the law on the constitutional

the Court abolished the provisions of § 5 para. 1 the last sentence, § 8 para. 4 and § 41

paragraph. 2 Act No. 109/2002 Coll., conflict with the article. 1, art. 4 and article. 79

paragraph. 3 of the Constitution of the Czech Republic and article. 4 (4). 1 and 2, article. 7 (2). 1, art.

10, paragraph 1. 2 and article. 32 of the Charter of fundamental rights and freedoms, and that at the date of

the publication of this finding in the statute book.



The President of the Constitutional Court:



JUDr. Rychetský v.r.