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In The Matter Of The Application For Revocation Of Section 65 Paragraph 1. 2 Of The Family Code

Original Language Title: ve věci návrhu na zrušení § 65 odst. 2 zákona o rodině

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295/1996 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the United States



The Constitutional Court of the Czech Republic decided on 5 July 2004. November 1996 in plenary on

the design of regional court in Brno on the repeal of section 65 paragraph 1. 2 of the family code

No. 94/1963 Coll.



as follows:



The proposal is rejected.



Justification



(I).



28 June 1999. in March 1996, the Constitutional Court of the Czech Republic received a proposal from the

Regional Court in Brno on abolition of the provisions of section 65 paragraph 1. 2 of the law on

family no. 94/1963 Coll. (hereinafter referred to as "family law").



Regional Court in Brno, the Senate 16 What, in appeal proceedings the appellant

JUDr. I. i. against the judgment of the District Court in Znojmo from day 13. April

1994 no Nc 702/94-13 in case nezrušitelného the adoption of adult m. Z.

came to the conclusion that the provisions of section 65 paragraph 1. 2 of the family code is in

contrary to the Charter of fundamental rights and freedoms ("the Charter"), and it

with article 3, paragraph 3. 1 and 3, as well as with article 1, the following provisions

Declaration of the rights of the child (published under no. 104/1991 Coll.), and therefore

opted for the procedure according to § 109 paragraph. 1 (b). (b)) code of civil

regulations and section 64 para. 4 of law No. 182/1993 Coll., on the Constitutional Court. Its

by order of 5 May 1999. 1995 SP. zn. 16 What 473/94 the Board of management

cut off and handed to the Constitutional Court for annulment of part of the provisions of § 65

paragraph. 2 of the family code, as amended by law no 132/1982 Coll., no. 234/1992

Coll. and no. 72/1995 Sb.



In the grounds of its application the applicant mainly in the introduction notes that

the mandatory nature of the contested provision does not permit the adoption of an adult

of the child. Thus conceived the provisions of § 65 para. 2 of the family code is

in his opinion, contrary to the law of the higher legal force-

Constitutional Act No. 23/1991 Coll.-in context with the claims of children's rights

(hereinafter referred to as the "Declaration") published under no. 104/1991 Coll. points out

Article 3, paragraph 3. 1 of the Charter and article 1 of the Charter, with the equality rights of the

citizens, therefore, the general validity and zaručenost for the fundamental rights and freedoms

all citizens and also generally equivalent to the protection of these rights, it is

the central principle of the rule of law, and therefore whether or not the company is represented

right in the opening passages of the Basic Law of the State-the Constitution of the United

Republic (hereinafter referred to as "the Constitution"). This principle-in terms of the structure of the

rule of law-may be compromised only by the legal norm of the same legal force

created on the basis of the same rules of their adoption, which make it difficult to

its negation (article 9, paragraph 1, of the Constitution). Consideration of the claimant about breach

the provisions of section 65 paragraph 1. 2 family law with regulations of greater legal force,

to further justify its proposal in the States is based on the assumption that the

enhanced protection of the rights of children (minors) is itself disruption

that principle, however, the disruption, which referred to the principle of fully

corresponds on the one hand, as it is justified by the Charter (article 32, paragraph 1, sentence

the second), and claims. The limits of that protection are also those provisions

made-from article 32 para. 1 of the Charter, it is clear that this is a special

protection from the Declaration must then be inferred that these limits are given by

that the child needs special protection for their physical and mental

immaturity. From the above (and also of the overall concept of the claims) should be

to infer that this is about the protection of the rights of the child, which is not able to get

to secure itself while this protection is directed, or has a child to protect

against malicious actions of other entities-people, the State and the institutions-

for example. right of the child to a name and nationality (article 7 of the Declaration), the

preservation of identity (article 8 of the Declaration), to freedom of expression, of thought,

conscience, religion, Association, gathering (article 13-15

The Declaration), the prohibition of punishment, violence (article 19 of the Declaration), the right to

humanitarian assistance in the event of armed conflict (article 38 Declaration)

etc. These limits are defined by the particularity of the protection of rights of the child, and if

the exceptional child protection within the following limits through regulations

lower legal force (law) applied to a particular rule of life, then

We cannot talk about the fact that such protection would conflict with the principle of

the equality of rights of all citizens. On the other hand it must be inferred that the

where the exclusive protection rights of the child does not flow from the principles listed

in the Declaration, is already in breach of the principle of equal rights for all

citizens. To do this, the appellant adds that article. 21 Claims, dedicated to

adoption, is intended to protect the child against abuse of the Institute of adoption,

but does the exclusive right only of the child for adoption.



Current treatment of adoption is conceived as the exclusive right of a minor

of the child to adoption. This right, however, in the opinion of the applicant (if the

conceived as a so-called. the special right) is not included within the limits of the specific

(exclusive) the legal protection of the child, which is determined by the claims, and is therefore in

contrary to the principle of the equality of citizens in their rights (article 1 of the Charter).

As the appellant points out, does not deprive the right of the child to the adoption,

only is of the opinion that it is unconstitutional, if the law

conceived as the exclusive right of a minor child.



Points out further that the current legislation on adoption is based on the

the original concept of adoption as a replacement family relationships where there are

These relationships, whether objective or subjective reasons, broken,

and has the task of protecting the rights of the child in particular-to ensure

proper education, adequate nutrition and proper and healthy development of the child in the

adult. Passes, however, that there may be reasons and interest

others on the adoption, the adoption extends not only to the family

relations, but also through those relationships into relationships eg.

property, housing, etc. (in respect of legal relationships) and

equally into social relationships. In this context, the appellant

also points out that even some of the surrounding States, the Institute of adoption

an adult they know. The appellant acknowledges that the law of its general scheme

is based on the principle that you can acquire only a minor child, and so are

also define the conditions for adoption, but due to the fact that only

the contested provision is of a mandatory nature, expressed this principle proposes either

the abolition of the provision as a whole, or with regard to language and

the logical representation of the kogentnosti of this provision, ' and that ' cancellation

These words in the contested provisions to section 65 paragraph 1. 2 of the family code

It read: "Learning can be minor, only if it is to the benefit of his adoption."



II.



The Constitutional Court first noted that the wording of section 65 paragraph 1. 2 of the family code

It was not in any way changed over time. Partial amendment to no. 132/1982 Coll. No.

234/1992 and no. 72/1995 Coll., the contested provisions do not hit any.



According to § 42 para. 3 and section 69 of Act No. 182/1993 Coll. posted by Constitutional Court

proposal for a regional court in Brno, the Czech Parliament Chamber of Deputies

of the Republic. In its statement of 25 March 2004. April 1996 the then President

The Chamber of Deputies Milan Uhde confirmed that family law was

approved by the necessary majority of the National Assembly on 4.

in December 1963, he was signed by the respective constitutional factors and properly

declared. In addition, States that the Convention on the rights of the child (hereinafter referred to as

"The Convention") stipulates in its preamble that childhood is entitled to special

care and assistance and that the child for his physical and mental immaturity, needs

special guarantees, care and adequate legal protection before birth and after

it. In accordance with this, then the Charter provides in article. 32 para. 1 Special

the protection of children. According to the article. 20 (2). 1 and 2 of the Convention a child temporarily or permanently

deprived of family environment, or in their own interest

cannot be left in this environment is entitled to special protection and

assistance provided by the State. The State provides such a child replacement

care in accordance with its national law. Adoption of a child is

an important decision about his personal status, and therefore should always be

carefully to determine whether all the conditions for met.

You can only acquire the nezletilce. However, the adoption must be the adoptee ku

benefit. It is a basic principle of editing the adoption. All of the other

the conditions that the law specifies, in essence, are pointing to this

the basic condition has been met. In any case, you cannot understand

the benefit for the adopted child only material security. The purpose of the

This Institute is to the greatest extent possible, to create relationships that

are between parents and their children, where the natural conditions for

parental relationship may not fully apply. The argument of the proposal

Regional Court in Brno, which States that the provisions of section 65 paragraph 1. 2

family law is in conflict with the law of the higher legal force-

Constitutional Act No. 23/1991 Coll.-draws attention to the fact that the Charter

as the constitutional law of the Federal Assembly of the Czech and Slovak

The Federal Republic was preceded by Constitutional Act No. 23/1991 Coll., which

in section 1 (1). 1 it was established that constitutional laws, other laws and other

the legislation, their interpretation and application must be in accordance with the

By the Charter. This nadústavní concept of the Charter Constitution didn't take to the positive

the constitutional modifications I and article 3. Set so that the Charter has

the same legal force as the Constitution and other components of the constitutional order.

Notes that the provisions of section 65 paragraph 1. 2 of the law on the family, or part of the


the provisions of section 65 paragraph 1. 2 of the same law, as expressed by the words "and it" is not in the

contrary to the constitutional order of the Czech Republic or with international

treaties by which the Czech Republic is bound. Observations then closes

by being on the Constitutional Court to examine the constitutionality of the contested

the provisions of the Act on the family and issued the appropriate decision.



III.



The applicant justifies the proposal to repeal the provisions of section 65 paragraph 1. 2 of the Act

the family of its contradiction with article. 3 (2). 1 and 3 and article. 1 of the Charter in the following

to the Convention. Basically takes the view that the current treatment of adoption in

the Act on the family is conceived as the exclusive right of a minor child and

the contested provision, on which this policy is expressed in mandatory

in a way, so it provides a minor child the special protection of its rights,

that goes beyond the scope of the Convention and article. 32 para. 1 of the Charter. This is getting into

contrary to the principle of equality and the prohibition of discrimination, as it represents

privileging of minor children in their adoption rights over

vulnerable.



The task of the Constitutional Court is therefore to assess whether the conditions laid down, personal

the scope of the contested law does not violate the principle of equality in the rights

generally expressed in the article. 1 of the Charter and guaranteed and particularized article. 3

paragraph. 1 of the Charter, according to which fundamental rights and freedoms to guarantee to all

without distinction of sex, race, colour, language, faith and religion,

political or other opinion, national or social origin,

membership of a national or ethnic minority, property, birth or

other status. The constitutional principle of equality in the rights enshrined in article. 1

Of the Charter cannot be treated absolutely and equality cannot be understood as a category

the abstract. The Constitutional Court of the CSFR has already expressed its understanding of equality, in

that article, as enshrined, as relative equality, as have the

the mind of all the democratic Constitution, requiring only the removal of

unjustified differences (Constitutional Court of CZECHOSLOVAKIA published under no. 11

Collection of resolutions and findings of the TC of CZECHOSLOVAKIA). The principle of equality in their rights is therefore

also should be understood so that legal distinction in the access to certain

rights between legal entities must not be the result of arbitrary power, it does not follow

However, each had to be granted any right.



When assessing the merits test application for annulment of the provision of section 65 paragraph 1. 2

family law is a must have in mind the total adjustment of the Institute

the adoption of the law on the family. The concept of adoption itself this law directly

does not define. Valid legislation of the Institute of adoption in the Act on the family

provides for both a way of developing adoption and its legal consequences. When

the Constitutional Court's decision on the proposal is an important way of developing itself

adoption, especially the Act itself, which accepts foreign adoptive child

and that creates for the adopted child of a new educational and family

environment. This Act pursuant to the applicable legislation is completed by decision

the Court, which has constitutive effect for the release, however, without a legally

the relevant behavior of adopters cannot occur. The conservation of

the principle of equality should be primarily assessed the position of the

adoptive parents. It is the will of the future adoptive parent, which is not only

an essential, but also a determining and pre-requisite of developing mastery.

(Pursuant to section 63 of the Act on the family, it is possible to initiate proceedings for adoption only to

the design of the future adoptive parent, who also designed the Court-

completely bound-during the proceedings.) For this reason it is necessary to

the right to adoption (understood as the right of subjective rights theory)

relate primarily to and adoptive. In relation to them then a violation of

the principle of equality certainly cannot be inferred. The position of all adoptive parents

It is the same in terms of the applicable arrangements, everyone can master only child

minors. Therefore, to assess the remaining question that forms the substance of the proposal,

Indeed, the question of whether the legislature did not infringe the principle of equality by

did not include potential osvojenců also to the circuit of the person of full age. From

the perspective of the applicable legislation, the Institute of adoption is the status of children and

people surviving undoubtedly unequal. According to the Constitutional Court, however, it is not about

inequality, which would have reached the intensity of inequality is unconstitutional.

Justifies her natural objectively existing and obvious

the difference between minor children and those adults, the difference

the urgency of the need to ensure alternative family relationships with children

minors. The difference, so the legislature between minor children and

persons in the contested provision is of consenting adults, therefore cannot be considered as

unjustified or fixed arbitrarily nor discriminatory. (Similar to the

the differences, though not quite comparable, can find in other

legal sectors of our legal order, for example, the provisions of §

479 of the civil code, that the heirs of neopomenutelných grants

a more favourable status to descendants of the unaccompanied minors in relation to the offspring of adults,

Similarly, the criminal law of the General conditions of criminal liability

earmarks, for which a group of minors provides for the conditions and content of the different

criminal liability.)



If the petitioner points out the existence of other reasons for adoption,

before the refund is of family relationships, where there are these relationships, whether from

objective or subjective reasons, far-flung, in this context,

also points to the earlier adoption of a law in force in the territory of

our State, possibly in some surrounding States, this requires

noted that the judge question the effectiveness and suitability of broadening

osvojenců to persons of full age is only under the authority of the legislature, to which

the activities of the Constitutional Court, except in cases of detected neústavnosti-so

This, as is clear from the above, in the case of the contested provisions

It is not to intervene.



Finally, it should be noted that article 3 (2). 3 of the Charter, which

the appellant also relies on (but without his proposal in this respect closer to

motivated), provides that no one may be caused by injury to the rights for

the application of its fundamental rights and freedoms, on the provisions under consideration

therefore obviously doesn't work. For these reasons, the Constitutional Court is of the

the opinion that the provisions of section 65 paragraph 1. 2 of the family code does not conflict with

Article 3, paragraph 3. 1 and 3, and article 1 of the Charter, and therefore the proposal for its

Cancel to dismiss.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v. r.



Different views



1. Different opinion of judge JUDr. Vladimir Klokočky



Find and its justification is based on unambiguously from such interpretation

the provisions of section 65 paragraph 1. 2 of the family code, which excludes the adoption of other

people than the minors. From the overall context of the Act and from the wording of

of the provision ("and") concludes that the law expressly

reduces the possibility of intercountry adoption only to minors and this by specifying

excludes any other use of the Institute, in particular whether or not an adoption adoption

people that are not expressly set out in this provision.



Proposal from the regional court in Brno to repeal this restriction notes

the origin of this legislation, which has the task of protecting the rights of particular

a minor child to ensure proper education, adequate nutrition and

the orderly and healthy development of the child in the adult. Points also to the

that the law leaves out the fact that there may be reasons and

interest in adoption Russia and also fails to recognise also that the adoption of

extends not only to the family relationship, but through them and into the

relationships property, residential and social.



This account cannot be only to be put off by pointing out the positive limit Institute

the adoption of the nezletilce, since the legal restoration of the Institute of adoption

minors are "eo ipso," also a radical intervention by the State in

personal and family life and its arrangement in relation to persons

adults. If we start from the fact that the State is based on respect for the rights and

freedoms a person (article 1 of the Constitution of the Czech Republic) and that State power is used

citizens, limiting human freedom is constitutionally justifiable only,

If such a restriction is showing a clear and sufficiently strong public

interest.



Due to the provisions of article. 8 of the Convention for the protection of human rights and fundamental

freedoms, which confirms the right of every person to respect for their personal and

family life and that gives the State "right to intervene only in the necessary

cases of public interest ", it should be in the case of the ban on adoption

adult people the public interest in the adoption of a clearly noticeable.

This in fact is not.



Family law is based on when you edit the adoption is primarily from the relation of parents and

the minor children. In fact, it is precisely this apparent "privilege"

contains a set of conditions, which has the protection of the interests

minors to ensure, therefore, that they are in an age in which

themselves or a legal act or fully recognize their own interests.

The logic of the acquisition must, therefore, be viewed in reverse: the adjustment of the adoption

the minor is not the prerogative of any privilege, but is on the contrary

by limiting the options of adoption, by binding to specific conditions and

assumptions and on synergies of the State. These restrictions are justified age

the adopted child. In contrast, people can logically assume adult that

the conditions of adoption may be looser than in the minors because the


It's about people that are able to legally Act, and to identify their interests.

However, the logic of the law is the opposite. Instead of looser editing adoption is

adoption adult disabled. The ban, if it were necessary

the case of the public interest, it is in breach of the principle of minimizing the

State intervention in personal and family life and restricts the basic

the freedom of man, which are not even available to the legislator.



Last but not least is to be seen by the fact that the existing legislation

Czech Republic clearly differs from most other European countries,

all adult adoption, which is not permitted by the fact

negligible in terms of preparations for accession to the European Union.



In view of all those considerations, it is the design of the regional court in Brno

it to a new article 65 paragraph 1. 2 of the Act on the family, was "learning

the minor can be just if he is acquiring the benefit of "reasoned and

constitutionally Conformal.



2. Different opinion of judge JUDr. Vladimir Paula



This different opinion first pronounced full acceptance of different

the opinion of the judge. Vladimir Klokočky in that case. Shall be deemed to

However, the need to further emphasize that the rejection of the regional court in

Brno in subject matter is neither correct, nor logical. As already

as a result of a previous different opinions, you can restrict the human

freedom only if a clear and sufficiently strong public

interest and other respected the statutory warranty. Such public interest

Here, however, is not, it cannot detect or engineered. On the contrary, in this

specific circumstances indicate that the adoption should take place

first of all, in the interest of consolidating the new family formed of two families

unqualified. Here is the public interest no longer sufficiently evident, it is completely

the opposite orientation, i.e.. would have to restrict human freedom, and

support of such intentions of the family is given already in article II. the fundamental principles of

family law, when declaring that the marriage-based family

the backbone of the company, which protects the versatile family relationships.

This is, moreover, comply with the provisions of the article. 23 of the International Covenant on

Civil and political rights and article. 10 International Covenant on

economic, social and cultural rights.



The lack of public interest to prevent adoption of adult persons, indeed,

also the diction of the family in article 65 paragraph 1. 2: "Learning can be

the minor only if the adoption benefit to him ", which is

is interpreted as a disapproval of the legislature with the Institute of adoption and

in the case of people surviving, although no ban from it even at laickém

the interpretation is not apparent. The fact that the law has not provided for the acquisition of separately

minors, also cannot be considered a ban. Family law anywhere

does not state that adult adoptions is inadmissible or use another

an expression that would ban was undoubted. And so even here it is necessary to come out of the

The Charter of fundamental rights and freedoms, from her article. 2 (2). 3, which States,

that everyone may do what is not prohibited by law. The interpretation, which

led to the rejection of the regional court in Brno, in this case was

violated the rights of adult persons such as osvojenců or adoptive parents.



Another interpretation, which, although common practice differs from that of the courts, would not

logical, because of the adoption, not a single decision, but as

permanent legal Institute, commonly exists (on the territory of the United

Republic since 1811 in 1950) and even family law at the same time valid in §

paragraph 73. 2 counts that osvojenec reaches the age of maturity, adoption

the moment is not lost and the person remains an adopted adult.

Confirms the opinion that cited section 65 paragraph 1. 2 of the Act

the family was not meant as a ban. The law also does not imply that adoption is

exclusive rights in a minor child to adoption, but it can be a maximum of

inferred that the adult adoption is not regulated, but not prohibited. Definitely

Neither the law nor of his interpretations imply that would curb adoption

Russia was in the interest of the citizens, of the company or in another public

interest.



The Constitutional Court therefore had sufficient grounds and evidence to find that in the

this case is necessary to eliminate the unconstitutional status, and to comply with the proposal

Regional Court in Brno in the matter of the adoption of Russia.