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in educational establishments and amending other laws shall be repealed on the date of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