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.