The Constitutional Court found no 234 / 2016 Coll.
The Constitutional Court found of 14 June 2016 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
22.07.2016
234
FIND
The Constitutional Court
On behalf of the Republic
On 14 June 2016, the Constitutional Court decided under sp. zn.
as follows:
Paragraph 13 (2) of Act No. 115 / 2006 Coll., on Registered Partnership and on the amendment of certain related laws, is deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
Recapitalisation of the previous proceedings and the proposal submitted
1. By a proposal notified to the Constitutional Court on 5 March 2015 by virtue of Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") and the provisions of Article 64 (3) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court"), the Municipal Court in Prague (hereinafter referred to as "the Proposer" or "the Municipal Court") seeks the annulment of the provisions of Article 13 (2) of Act No 115 / 2006 Coll., on the Registered Partnership and the amendment of certain related laws, hereinafter referred to as "the Law on the Registered Partnership."
2. The applicant submits that by order of the Office of the City of Prague 13, the Department of Social Welfare and Health, of 25 March 2014 No P 13-12735 / 2014, the procedure for the application of Ing. Peter Lana ("the applicant ') for the inclusion in the register of applicants suitable for the adoption of the Act, as the applicant does not comply with the requirements of § 800 of Act No. 89 / 2012 Coll., Civil Code. The applicant's appeal was subsequently rejected by the Municipality of Prague, the Department of Administrative Activities in Health and Social Welfare, by decision of 30 April 2014, sp. zn. SOC: 608555 / 2014. The essence of this Decision was that, although the administrative body of the first degree had decided in accordance with the law, it failed to state that the prohibition on the adoption of a person living in a registered partnership was based on Article 13 (2) of the Law on the Registered Partnership. This decision was contested by the applicant by an administrative action brought before the municipal court.
3. The municipal court states in the statement that the reason for the prohibition of adoption in these cases stems directly from the legal regulation according to which the very existence of a registered partnership prevents one of the partners from becoming the adopter of the child and other facts are not found in this situation. The appellant points to Article 1 of the Charter of Fundamental Rights and Freedoms ("the Charter ') and Article 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms (" the Convention'), which prohibit any form of discrimination. Article 21 of the Charter of Fundamental Rights of the European Union, expressly prohibiting discrimination on grounds of sexual orientation, can also be referred to. The appellant recaptures the general adoption arrangements contained in the provision of Section 800 of the Civil Code and notes that, if the adoption applicant were not to live in a marriage and even in a registered partnership, he could, under certain conditions, become an observer. However, if he is living in a registered partnership, the adoption ban is valid from this point of view, without considering the circumstances as to whether such an applicant is able to create an adequate background for proper child education. These facts constitute differences which are unjustified and there are no reasonable grounds for a different approach.
4. Therefore, the municipal court proposes to abolish the contested legal provision.
Compliance with management conditions
5. The Constitutional Court first addressed the fulfilment of the conditions of the procedure and notes that the application was made pursuant to Article 95 (2) of the Constitution. According to that provision, "[d] if the court concludes that the law to be applied in the resolution of the case is contrary to constitutional order, it shall bring the matter before the Constitutional Court. '
6. In addition, the Constitutional Court states that this case is a case of so-called specific (even more precisely: incident) and not abstract control of standards. In the light of the foregoing, the appellant is undeniably actively legitimate to submit this application, since the contested legal provision directly concerns a case dealt with by the municipal court and, should the Constitutional Court not comment on its constitutionality, there would be an extremely undesirable situation under the rule of law where the court would have to rule under the provisions of a law which, according to its firm conviction, is contrary to the constitutional order.
7. Since the Constitutional Court has no doubts as to the fulfilment of the further conditions of the procedure, it has taken a substantive approach.
Proceedings before the Constitutional Court and observations of the parties and interveners
8. The Constitutional Court, under the provisions of Section 69 of the Law on the Constitutional Court, sent a motion to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic (hereinafter referred to as "the Chamber of Deputies' and" the Senate '), which are entitled to intervene as interveners.
9. The Chamber of Deputies stated in its observations on the proposal that Law 115 / 2006 Coll. was discussed in the Chamber of Deputies as a parliamentary bill (Press 969) and was approved as amended on 16 December 2005. The text of Paragraph 13 (2) of this Act has not been amended since 2005. Both chambers of Parliament have agreed to the draft law, the law has been signed by the relevant constitutional authorities and has also been duly declared.
10. In his observations on the proposal, the Senate stated that it had discussed and approved the draft Act on Registered Partnership as referred to it by the Chamber of Deputies at its 9th meeting of 26 January 2006, when it voted in favour of its approval from 65 senators present and against. 45 In the debate, some of the senators also spoke about the contested legal provision. The bill was therefore approved in a constitutional manner.
11. The Government of the Constitutional Court has informed the Constitutional Court that it will not exercise its right under Paragraph 69 (2) of the Law on the Constitutional Court and will not intervene in the proceedings.
12. The Ombudsman stated that, within the meaning of Article 69 (3) of the Law on the Constitutional Court, he was intervening and stated that he was referring to the report on the inquiry which he had carried out in the applicant's case (sp. ref. 2977 / 2014 / GTC). The legal sentences contained in this report are as follows: "I. Paragraph 800 of the Civil Code of 2012 does not preclude the adoption of registered partners. However, Article 13 (2) of the Registered Partnership Act is excluded. II. Any provision or procedure of a public authority which makes it impossible to adopt solely because of the sexual orientation of a potential acquirer contrary to the constitutional order and the Convention on the Protection of Human Rights and Fundamental Freedoms. 'This view was based on the grounds that there was no objective and rational reason for which registered partners should be prevented from being adopted, even between the claims of opponents to be adopted by registered partners. The predicament of the whole situation is illustrated by the fact that the legislator is trying by law to prevent something that is not normally regulated, namely that children are raised by registered partners. This situation actually exists. Except for the possibility of biological parenthood, registered partners can also be raised in other ways. It is often the case where one of the partners has become a parent before the creation of a partnership and continues to care for the child. The discrepancy of the legislator can be illustrated by the wording of Section 13 (3) of the Registered Partnership Act, which in such a case provides for a second partner to be required to care for the child. Another option is the adoption of a child by only one person without the actual life partners entering into a registered partnership, since the adoption of a single person is permitted by law. The protector also referred to the judgments of the European Court of Human Rights (hereinafter referred to as" ECLP') Fretté v France (of 26.2.2002, No 36515 / 97) or E. B. v France (of 22.1.2008, No 43546 / 02), where that court concluded that the adoption of a child by a homosexual person may be refused only if there are reasons other than the mere sexual orientation of the applicant for such a decision. In other words, the ESLP itself does not consider adoption applicants to be a legitimate reason to restrict their right to develop a relationship with a child fit for adoption. Since Article 13 (2) of the Registered Partnership Act excludes registered partners from the possibility of adopting a child solely because of their sexual orientation, the Protector considers that that provision is contrary to the right to equal treatment as stated in Article 14 of the Convention.
13. The guardian also points to a foreign comparison, which implies that out of 28 EU countries, same-sex persons can marry in 11 countries and in 6 other countries they can enter into registered partnerships. Of these 17 countries, 13 countries accept the joint adoption and adoption of a child and only the adoption of a child by a partner by 2 states. Only Hungary and the Czech Republic have completely banned the adoption of registered partners. The protector notes that the question in question is not just a political question, but also a question of human rights. In this respect, it considers that the contested legal provision violates the right to the protection of private and family life under Article 8 of the Convention and Article 10 (2) of the Charter and the prohibition of discrimination under Article 14 of the Convention. Finally, the Protector takes the view that the contested legal provision constitutes direct discrimination based on sexual orientation and therefore proposes that it be abolished as an unconstitutional provision.
14. In accordance with Article 44 of the Law on the Constitutional Court, the Constitutional Court has ruled on a case without oral hearing, since further clarification of the case could not be expected.
Assessment of the competence and constitutional conformity of the legislative process
15. Since the application in question fulfils all the legal requirements, the Constitutional Court was able to proceed to a substantive review of the contested legal provision, in accordance with the provisions of Section 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., first addressed the question of whether it had been adopted and issued in a constitutional manner and within the limits of the constitutional competence provided for. However, in this respect, it did not find any relevant circumstance which could call into question the constitutionality of the procedure for hearing and approving the law in question containing the contested provision.
16. According to the provisions of Section 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the law with a constitutional order consists of answering three questions: whether it was adopted and issued within the limits of the Constitution, whether it was adopted in a constitutionally prescribed manner and whether its content is in accordance with the constitutional laws and, in the case of other legislation, with the laws. In the case of the contested provision, it is beyond doubt that Parliament was competent to adopt it within the meaning of Article 15 (1) of the Constitution. As regards the method of adoption of the Law on Registered Partnership, the Constitutional Court found from the observations of the parties, as well as from other publicly accessible documents relating to the legislative process that the law, proposed by the Group of Members (Anna Churdová, Jitka Kupčová, Tatáina Fischer, Kateřina Dostálová, Lucie Talman, Kateřina Finická, Zdeněk Jičiná, Vladimir Doležal, Pavel Svoboda, Vlastimil Ostrý and Vladimir Koníček, Chamber of Depuštěněch, 2005, IV. Election, Printing No 969, in: http: / www.psp.cz / sqw / text / print.sqw? o = 4 & ct = 969 & ctl = 0), was adopted in a constitutional procedure.
17. Nothing therefore precludes the Constitutional Court from carrying out a substantive assessment of the constitutionality of the contested provision.
Basic basis for examining the contested legal provision
Quotation of the contested provision and other relevant provisions
18. According to § 799 of the Civil Code:
"(1) Only an elderly and self-employed person can become the owner if he guarantees his / her personal characteristics and manner of life, as well as the reasons and motives that lead him / her to be a good parent for the child he / she has received.
(2) The health status of the adopter or both adopters must not significantly restrict the care of the adopted child. '
19. Under the provisions of Section 800 of the Civil Code:
"(1) A spouse or one of the spouses may become the owner. Exceptionally, another person may adopt; in that case, the court shall also decide that a record of the second parent is removed from the register.
(2) If the spouses so agree, they submit a proposal for adoption jointly as joint adopters. "
20. Paragraph 13 of the Act on Registered Partnership:
(1) The existence of a partnership is not an obstacle to the exercise of parental responsibility by a partner towards his child or an obstacle to the assignment of his child to his or her upbringing. A parent partner is obliged to ensure the development of the child and to consistently protect his or her interests by using adequate educational means, so as to avoid prejudice to the dignity of the child and to jeopardise his or her health and physical, emotional, rational and moral development.
(2) The ongoing partnership prevents one of the partners from becoming a teacher of the child.
(3) If one of the partners takes care of the child and both partners live in the same household, the other partner is involved in raising the child; obligations relating to the protection of the development and upbringing of the child shall apply to this partner.
21. The Constitutional Court notes first of all that the "new" civil code in this respect, rather than the regulation enshrined in the provisions of § 63- 66 of the already repealed Act No. 94 / 1963 Coll., on the family, as amended, has only made a formulating and not systemic change. This law has already provided that only natural persons (Paragraph 64 (1)) can become an adopter, and only spouses (Paragraph 66 (1)) can adopt someone as a common child. Thus, the law allowed both the adoption of an individual (i.e. one person) and the adoption of a common one, in which case only the spouses could become the adopters.
22. A number of conclusions are drawn from the legal regulation cited. Firstly, the legislator prefers the adoption of a spouse, or one of the spouses, because it is in the primary interest of children to be given the opportunity to live in a "full" family in a standard concept. The possibility of adopting a "different" person, that is to say, a single person, constitutes an exception to this rule. In this case, however, there must be clear guarantees that this person is able to offer adequate guarantees to the child for the development and fulfilment of needs, not only material ones. Simply put, every child should grow up in an environment where it will feel good, where it will perceive the interest and love of its loved ones and, last but not least, feel certain, so important that it can grow up to be a well-developed and reasonably confident person.
23. It also follows from the prescribed legal regulation that the regulation contained in the Civil Code and the Priori does not exclude that a person living in a registered partnership (which would be the so-called "other person 'mentioned by the law) may also become an observer, although it should not be a regular situation but rather an exceptional one (see also Section 3020 of the Civil Code, under which the provisions of Parts One, Three and Four on marriage and the rights and obligations of spouses apply mutatis mutandis to registered partnerships and the rights and obligations of partners). This possibility is therefore clearly prohibited only by the contested provision of the Law on Registered Partnership. Indeed, it follows from the explanatory memorandum to the" new "civil code to the provision of § 800 that" [u] an explicit list of incoming' types of adopters is given, which can only be derived from existing legislation. (On the contrary, it can be concluded from the provision here that this is a list.) "Other 'means a person who, although perhaps not living alone, does not live in any legally recognised union. However, it cannot be registered partners, in particular with regard to other legislation in which the relations of registered partners are regulated.'
24. In the course of the legislative process when adopting the Act on Registered Partnership, it is not clear at all what was the true intention of the legislator in this respect, what motivated it and what argument was based on so that even in this case the assumption of a rational legislator would apply. The explanatory memorandum to this provision merely states that "the adoption of a child by registered partners or by any partner will be prohibited during the duration of the partnership. The reason for this is the preference of a replacement child education by a heterosexual couple." At the same time, the Constitutional Court already notes that even such a simple explanation is not appropriate, since the argument of preference for the replacement education of a child by a heterosexual couple would be relevant only if it excluded the legislator from adopting an individual, which, however, is not true in the light of the above. Apart from other illogicalities, for example, the Protector points to paragraph 3 of the contested provision determining the obligation of the other partner to participate in the education of the child cared for by the registered partner (see also below).
Relevant case-law of the European Court of Human Rights
25. The question of the adoption of children has also been repeatedly addressed by the ECHR case-law, as the Protector explicitly points out. The Constitutional Court considers the following decisions of the ECHR to be of particular importance for the case at hand.
26. In the Fretté judgment cited above against France, the complainant requested prior consent in 1991 to adopt the child, while not hiding his homosexual orientation from the administrative authorities during the investigation. His request was rejected and neither did the administrative courts. The argument of the national authorities referred to his lifestyle and lack of adequate guarantees from the perspective of raising children, family and psychology, despite his undisputed personal qualities and assumptions to raise children. The complainant before the ECHR argued that his application was rejected solely because of the prejudice of his sexual orientation. The ESLP only granted him the right to a fair trial. It stated (from the point of view of the possible application of Articles 8 and 14 of the Convention) that the right to adopt the Convention does not guarantee and the right to family life presupposes the existence of a family, so it is not enough just to establish it. However, the ECHR came from the fact that the French Civil Code allows both the adoption of Article 343 and the unmarried person and that the reasons put forward by the national authorities for refusal implicitly indicated that the complainant's sexual orientation was a decisive factor. It therefore assessed the complainant's objection as falling within the scope of Article 8 of the Convention without, however, expressing itself as to whether it is a family or private life. However, the complainant claimed above all that there was a breach of his private life (§ 28). In the next step, the Court acknowledged that the rejection pursued a legitimate objective - the protection of the health and rights of the child. Similarly, he considered the rejection as appropriate to the objective pursued, since States have a wide margin of discretion in the field of adoption, there was no international consensus on these issues, and the national authorities legitimately and reasonably concluded that the right to adopt was limited to the interests of the child.
27. In the judgment already cited in the Grand Chamber of E. B. against France, the ECHR found infringement of the Convention by the fact that the complainant of homosexual orientation was not allowed to adopt, even if the unmarried person could adopt children under the Civil Code. The complainant was therefore discriminated against on the basis of her sexual orientation. It is, therefore, somewhat questionable to the extent that the judgment of E. B. against France may be beyond the judgment of Fretté against France. From a legal point of view, E. B. 's case against France as a Grand Chamber judgment is of greater importance and concerns the same situation where the legislation of a homosexual-oriented person does not prohibit adoption (it does not follow the sexual orientation of the receiver), but, in practice, adoption based on sexual orientation has been denied. However, in the Fretté case against France, the ECHR accepted this procedure on the basis of the interests of the child and the absence of an international consensus, but in the case of E.B., the ECHR has already described this as contradictory to the Convention because it has not found facts justifying discrimination based on sexual orientation. However, from the point of view of the facts, the two situations differ somewhat, as is pointed out in E. B. (§ 70-71). In the Fretté case, it was a gay man without a partner, the national authorities saw the problem in his lifestyle and noticed that he might not be able to see the practical problems associated with the child's arrival. On the contrary, E.B. was a long-term coexistence. These facts may suggest a certain distinction between the later judgment of E. B. and the former Fretté, although these facts are not accentuated.
28. In the Schalk and Kopf judgment against Austria (judgment of 24 June 2010, complaint No 30141 / 04), the ECHR found that the Convention did not entail an obligation to allow the State to conclude a marriage between identical couples and therefore no infringement of the Convention was committed. Article 12 of the Convention does not imply an obligation to make marriages and same-sex couples available. However, the Court found that the relationship between the complainants (i.e. the same-sex couple living in a stable de facto partnership) falls not only within the concept of private life but also constitutes a family life within the meaning of Article 8 of the Convention (§ 90-95).
29. In Case X. and Others v Austria (judgment of the Grand Chamber of 19 February 2013, complaint No 19010 / 07), the ECHR concluded that, by denouncing a partner the possibility of acquiring a biological child of his equal partner compared to the situation of a heterosexual unmarried couple, Austria infringes the Convention. In the same case, Gas and Dubois v France (dated 15.3.2012, No 25951 / 07), the ESLP stated that, if the partner cannot adopt the child of his uniform civilian partner, as would the heterosexual couple in the civil union, there is no discrimination based on sexual orientation. Their position is different from that of married couples. However, in case X. and others against Austria, they are unmarried homosexual partners, while unmarried heterosexual partners had the full opportunity to adopt the child of a second biological parent under the Civil Code. The ESLP came out of the fact that the Convention does not require the possibility for unmarried partners to adopt the second partner's biological child. Unmarried partners are not in a relevant situation similar to the married couple, so the Convention has not been infringed from this point of view. However, if Austrian law allows unmarried heterosexual couples to adopt a second partner's biological child, it is necessary to assess whether the denial of that right to unmarried gay couples serves a legitimate objective and is proportionate to it. The complainants had long lived together in a common household and their relationship fell under the concept of family life within the meaning of Article 8 of the Convention. In doing so, the Austrian Government admitted that uniform couples could in principle be as suitable for adoption as heterosexual couples. The Court has recognised that the protection of a traditional family can in principle be a legitimate objective justifying different treatment as well as the protection of the interests of children. In the event of different treatment based on sexual orientation, the government should have demonstrated the necessity of a different approach to achieving such objectives. However, the Austrian Government did not provide evidence that it would harm the child's upbringing with a single pair, and that adoption was open and gay-oriented, whether it had entered into a registered partnership or lived alone. The Court stressed that it did not address the general issue of the approach of an equal partner to the biological child of the second partner, but the different treatment between an unmarried heterosexual and unregistered homosexual couple in the approach to adoption. If there are no grounds for banning unregistered homosexual couples, it would be more likely for courts to assess the individual circumstances of specific cases in the best interests of the child. However, this could not be dealt with in a meaningful way by the courts, as this was not legally possible. Therefore, Article 14 and Article 8 of the Convention have been infringed.
Other relevant caselaw
30. The Austrian Constitutional Court, in its judgment in sp. zn. G 119-120 / 2004, annulled as of 31 December 2015 as an unconstitutional provision of the Civil Code and the Law on Registered Partnership, which prohibited joint adoption to registered partners. In its earlier decisions, the Constitutional Court took the same approach as the ECHR in the case of Schalk and Kopf, when it stated that the same-sex relationships fall not only under the concept of "private life 'but also under the concept of" family life' under Article 8 (1) of the Convention, where same-sex couples live together in a stable de facto partnership. This was the case, for example, in resolution sp. zn. B1405 / 10 of 22.9.2011 or in resolution sp. zn. G14 / 10 of 2.10.2012. Also in the finding of sp. zn. G16 / 2013 of 10.12.2013, in which the Constitutional Court found the contested provisions of the Reproductive Medicine Act (Fortpflanzungsmedizingesetz) unconstitutional, as it concluded that the restriction of access to reproductive medicine only for spouses and couples of different sex is contrary to Article 8 in conjunction with Article 14 of the Convention. Furthermore, in the finding of sp. zn.
31. In the case of 2015, the applicants were long-lived registered partners who raised the biological child of one of them and were interested in adopting another "foreign" child together. They argued that there is no justification for allowing registered partners in general to be excluded from the possibility of joint adoption and that a judicial review of their suitability, taking into account the best interests of the child, should be ruled out in advance, while spouses are considered as suitable adoptive parents. Austrian law accepts that a child grows up in a family of same-sex persons (in this case, registered partners are the legal parents of the other complainant's own daughter), and assumes that this is not inappropriate for the child. There is no factual reason why a person living in a registered partnership can adopt a child as an individual, whether a partner's own child or a "foreign" child, who then grow up in such a family of same-sex persons, i.e. also with a partner or partner of an adoptive partner, and cannot adopt a registered partner together. Thus, the contested legislation was, in their view, contrary to the principle of equal treatment as well as Article 8 in conjunction with Article 14 of the Convention.
32. The Constitutional Court concluded that the contested legislation, which allows the joint adoption only of spouses and registered partners from the joint adoption, precludes the legislator from distinguishing in the possibility of joint adoption on the basis of sexual orientation. The legislator thus treats the registered partners as a party to the adoption agreement and the registered or permanent partners of the same or different sex in the event of the adoption of the biological child of the other partner. While joint adoption of registered partners is excluded even if both have custody of the child or the partner has already taken custody of the child, the law allows for the simultaneous (legal) parenthood of the parents and adoptive parents when adopting the stepchild. Such unequal treatment is not justified in substance - in particular in the light of the best interests of the child arising from Article 1 of the Federal Law on the Rights of the Child (BGB1. I 4 / 2011). This does not result from Article 8 in conjunction with Article 14 of the Convention or Article 7 (1) of the Constitution. The best interest of the child cannot justify the fundamental exclusion of registered partners from the possibility of adopting the child, on the contrary, in some respects it stands with this exclusion in tension. Arguments justifying the prohibition by not referring to the child's interest in growing up with partners of the same sex, the Court considered it "inappropriate in advance." Therefore, protection of marriage or traditional families is not an appropriate argument. Socially, registered partnerships do not stand in any relationship of substitution to marriage and joint adoption by appropriate partners in a single case cannot jeopardise marriage.
Conclusions resulting from the caselaw cited
33. In particular, it can be concluded from those judgments that the Convention does not anchor the right to adopt. However, if States decide to allow adoption also to certain groups of persons (e.g. unmarried persons), they must not proceed in a discriminatory manner (E. B., X. and others, § 152). In order to assess whether there was discrimination, the ESLP compared the individual adoption of heterosexual and homosexual (Fretté, E. B.), a registered uniform partnership with a civil heterosexual partnership (Gas and Dubois), an unregistered heterosexual couple with an unmarried heterosexual couple (X. and others). On the other hand, it did not consider the situation of a registered and married couple comparable and did not establish an infringement of the Convention if, for example, the Austrian legal order allowed the adoption of heterosexual spouses, whereas the same partner of the adoption of his spouse's biological child did not (X. and others). The best interest of the child should have led to an assessment of individual circumstances of specific cases (X. and others). In cases where the difference in treatment is based on sex or sexual orientation, the State must demonstrate that this difference in treatment was justified by a legitimate objective and the means of achieving it were proportionate and necessary.
The Constitutional Court's own argument
34. The essence of the adoption of a child is to accept a foreign child as its own, with all the legal consequences involved. This institute has its origins already in Roman law and its basic idea is that it imitates the natural ratio of parents and children (adoptione naturam imitatur - the imitatur is imitated by nature, see e.g. J. Sedláček in: Fr. Rouček, J. Sedláček. Comment on the Czechoslovak General Civil Code. St. 1. Prague: V. Linhart, 1935, p. 894). However, the adoption and other forms of so-called alternative family education should always be seen as a replacement solution in the event of a natural family crisis, which aims at the best possible service for the child. It is possible to distinguish between three main types of adoption: 1. individual, 2. common and 3. adoption of the biological child of a partner or spouse ("second parent adoption," "l'adoption coparatale," "Stiefkindadoption").
35. The Constitutional Court is based primarily on the fact that there is no fundamental right to adopt a child, either at the constitutional level or at the level of the international obligations of the Czech Republic. At the same time, the local court accepts the considerable freedom that the legislator has in regulating relations between the same-sex partners. It is not even a fundamental right to marry (or registered partnership) among those of the same sex, and it is therefore up to the legislator to decide whether or not to adjust this relationship. The special protection is guaranteed only to the parent and family (Article 32 (1) of the Charter). Therefore, the Constitutional Court only finds the obligation to intervene if it finds that a specific solution chosen affects the fundamental rights of a group of persons.
36. The Constitutional Court also notes that it does not intend to attempt to formulate a generally valid and concise definition of "family '. This is primarily the task of other social disciplines (e.g. sociology), where, for example, the so-called complete and incomplete family, the basic family (nuclear), two and more generations, harmonious or pathological, etc. From the point of view of law, it is crucial to create an environment such that the family is sufficiently protected and that all the conditions are ensured for it to be able to fulfil its basic functions. It is therefore sufficient to conclude that the term" family "is understood by the Constitutional Court primarily not as an artificial social construct, but primarily as a biological one, based on the blood linkage of persons living together, or as an unrelated relationship, which mimics the biological relationship (adoption, foster, see for example S. Radvanova in: S. Radvanova and kol. Family and child in the new civil code. Praha: C. H. Beck, 2015, str. 3 et seq.). As the general civil code has already been regulated," family means grandparents with all their offspring. The relationship between these persons is called kinship, but the relationship that arises between one husband and the relatives of the other husband, in-law "(§ 40). At present, however, the civil code does not legally define the term family, which is explained, for example, by the fact that there is considerable" inconsistency, as the family is defined in the concept of individual social sciences, on the one hand, by the fact that the family itself is not a body of legal relations in our legislation, but the entities are only its individual members "(M. Hrušáková in: M. Hrušáková, Z. Králíčková. Czech Family Law. 3rd edition of Brno: Masaryk University, 2006, p. 12).
37. Of course, the Constitutional Court cannot ignore that there are currently major changes in the way people live together, that, contrary to the more traditional concept of families, assuming that they live together for more generations, more and more people live alone (so-called singles), the number of unmarried couples (cohabitation of a mate or other form of cohabitation) approaches the number of married couples, and the divorce of marriage is seen as something almost natural (see for example I. Kohoutová for more details: Sociodomographic homogamy of married and unmarried couples. CSU, 2014). The Constitutional Court cannot "close its eyes" before these phenomena. In addition, as the Constitutional Court recently stated in the finding in sp. zn. This is certainly the right of every individual. "On the other hand, however, the Constitutional Court points out that it does not see the slightest reasonable reason for which he, too, should contribute actively to the erosion of the traditional concept of family and its function. As sociologist I. Possible writes," family changes, but always is a stabilizing element of society "(I. Possible. Family and company. Praha: SLON, 2006, p. 14), since" family is the basis of genus or continuation of life in the next generations "(S. Radvanová, c. d., p. 3). The family is therefore created by marriage or by a common coexistence of unmarried parents and children, or by only one parent with a child (M. Hrusáková, c. d., p. 13).
38. In the present case, the Constitutional Court notes that it is also clear from the relevant legal regulation that the legislator prefers a marital relationship when it states that spouses or one of the spouses may become the teachers. This preference also follows from Article 6 of the European Convention on the Adoption of Children (No 132 / 2000 Coll. s. s., hereinafter referred to as "the Convention on the Adoption of Children '), according to which" [z] ákon will authorise the adoption of a child only in cases where it is either two persons living in marriage, whether they are engaged simultaneously or subsequently, or a single person.'
39. It is this form of coexistence that the Constitutional Court also considers to be fully constitutional in conformity with the nature of the institution of marriage as the closest form of coexistence between two persons of different sexes, which takes place on the basis of their free decision and which is linked not only to a number of rights, but also to obligations, and the decision to marry is therefore absolutely essential. This clearly distinguishes marriage from other forms of coexistence, which is why it is the institution of marriage that gives priori the greatest precondition for fulfilling the purpose of adoption, which is and must above all be the best interest of the child. In addition, both the Czech Republic and the Convention on the Adoption of Children, under which Article 8 (1), (2) "[p]," will not allow a strong authority for adoption unless it is convinced that the adoption is in the interests of the child. In all cases, the competent authority shall pay particular attention to the importance of adoption as a means of ensuring the permanent and harmonious home of the child. '; It should also be noted that Articles 3 and 21 of the Convention on the Rights of the Child, from which it is submitted that the interests of the child should be taken into account in the adoption (as in any other child-related activity).
40. In the present case, the essence of the problem is that the Civil Code, on the one hand, allows the child to be adopted by an exceptionally different person (other than the spouse), while at the same time the Law on Registered Partnership explicitly excludes that person from being someone living in a Registered Partnership. This leads to a situation where the legislator has admitted the adoption of a child and an individual who does not live in marriage, nor has it imposed any restrictions on whether he is a heterosexual or homosexual person. On the other hand, however, it prohibits this individual from living in a registered partnership. The result is therefore a situation where, for example, a person who lives together with an individual of the same sex can apply without further application for inclusion in the register of applicants suitable for becoming an adopter and that application will be granted after all conditions have been met, however, if, in another - but in fact quite similar - such persons enter into registered partnerships, they are prohibited by law. This may also result in such highly illogical cases where the same person makes an application for administrative proceedings and only after it has been filed "legalised" his long-lasting factual relationship by concluding a registered partnership, but as a result no longer fulfils the essential condition for inclusion in the relevant register of applicants for adoption.
41. In other words, the contested legal regulation clearly increases the formal legal situation (registered partnership) above the factual situation. However, from this very adjustment and from the explanatory memorandum, it is not at all clear what rational reason the legislator has in fact led to this very solution, which, for the reasons described above, seems illogical, irrational and consequently discriminatory in relation to persons who have entered into a registered partnership.
42. The illogical nature of the existing legislation is also very much reflected in the fact that, while the contested statutory provision prohibits any registered partner from becoming the owner of the child, on the other hand, paragraph 3 of the same provision explicitly implies that the legislator with effective care of registered partners is directly counting, and even obliging the other partner in this respect to obligations relating to the protection of the development and upbringing of the child. This creates a situation where, on the one hand, the legislature forbids, for a completely incomprehensible reason, a registered partner from adopting a child (a second parent case) and also undertakes to take care of it. In this case, expert literature also very critically states that "the impossibility of adopting a biological child of its partner appears to be a preposterous obstacle to the full upbringing of a child in a harmonious family environment '(D. Elischer, in: S. Radvanová, c. d., p. 181) because of the otherwise legally emerging homopental educational environment.
43. In addition to the arguments put forward by the Ombudsman in this regard concerning the infringement of the right to equal treatment under Article 14 of the Convention (and the corresponding arrangements contained in the Charter), which the Constitutional Court sees in its observations, the fundamental constitutional deficit of the contested legislative provision is in breach of the first sentence of Article 1 and Article 10 (1) of the Charter. According to those provisions, "[l] even men are free and equal in dignity and in rights," and "[k] he has every right to preserve his human dignity, personal honor, reputation and the protection of his name." It is the Constitutional Court that regards human dignity as the basis for the entire regulation of fundamental rights and freedoms.
44. After all, a similar approach is typical of other states based on the rule of law. In this respect, it is sufficient to refer, for example, to the fact that, pursuant to Article 79 (3) of the German Basic Law, Article 1 (1) is expressly included in the so-called material outbreak (apart from the principle of federalism, democracy, the social state, the sovereignty of the people and the division of power) in the area of fundamental rights, according to which the dignity of man is untouchable and respected and protected by all state power. As Jiří Baroš (Wagner / Šimek / Langášek / Pospíšil et al. Charter of Fundamental Rights and Freedoms - comment. Prague: Wolters Kluwer, 2012, p. 55 et seq.), the concept of human dignity could be achieved as a basic building element of the social order with the collapse of social hierarchies. Its legal concept was developed primarily in response to the horrors of the Holocaust and, in its present form, it is based on the perception of man as a unique personality, which is, however, a social being at the same time. Human dignity represents an untouchable value and is part of a supranational right [see sp. zn. II. ÚS 2268 / 07 of 29.2.2008 (N 45 / 48 CollNU 527)].
45. Also, the case law of the Constitutional Court places human dignity at the heart of the rule of law itself and defines it as part of the "humanity" itself. Therefore, a breach of human dignity occurs "when a particular individual is placed by state authority in the role of an object, when it becomes a mere means and is reduced to the form of a species interchangeable variable" [finding sp. zn. I. ÚS 557 / 09 of 18.8.2009 (N 188 / 54 CollNU 325)]. The Charter therefore also recognises the specific quality of a person as a body and prohibits a person from being exposed to an act that would call into question his or her affiliation with the human family. The equality of people in dignity and rights is the basis of recognition of the value of each person, regardless of its other characteristics and usefulness or usefulness for the whole [finding sp. zn.
46. It is precisely by placing human dignity as the fundamental objective values of humanity and the focus of other fundamental rights that the contested legal provision will not stand. If it is based on the fact that a certain right (albeit not directly from constitutional order, but from sub-constitutional law) excludes a certain group of persons only because they have decided to enter into a registered partnership, it makes them de facto "second-order" persons and gives them, for no reason, a certain stigma, which evokes the idea of their inferior nature, fundamental differences from others (probably "normal") and probably the inability to take care of children properly - compared to others.
47. In doing so, it is not on the grounds that the persons concerned may have committed a serious, unethical or even illegal act, but only on the grounds that they have entered into a registered partnership - that is to say, they are acting in a manner that allows and assumes the right, doing so in a completely transparent and predictable manner and taking on all the obligations arising from the registered partnership. Indeed, as a result of professional examination, "the consensus consists in recognising homosexuality as an innate unchangeable sexual orientation that arises as a result of the plurality of factors. The issue of social reflection of homosexuality can be concluded by claiming that in any case it is voluntarily unelected and unaffected by the will and, as such, should not become an excuse for any discrimination in civil society" (see D. Elischer, in: S. Radvan, c., p. 173). Moreover, as the Constitutional Court has already pointed out above, the legislator has treated this completely unjustifiable discrimination against registered partners in a situation where it has at the same time imposed on them educational obligations relating to a child already cared for by a second partner (see Section 13 (3) of the Law on Registered Partnership).
48. The Constitutional Court, in conjunction with the provisions of Article 10 (1) and (2) of the Charter, sees a breach of human dignity (as a fundamental right, interpretative guidance and objective values), according to which everyone has the right to preserve his or her human dignity and the right to protection against unauthorised interference in private life and, by analogy with Article 8 (1) of the Convention, guaranteeing the right to respect for private life. However, the right to the protection of family life, which also guarantees the articles cited, could not have been infringed by the contested legal provision because, in the absence of a fundamental right to the adoption of a child, the negative decision on adoption cannot, of course, be infringed by the right to family life.
49. It is true that persons living in a registered partnership have an undisputed right to privacy, both in their internal and external concepts. However, such protection and respect by the State cannot be fully fulfilled if these people continue to be stigmatized by the fact that the law completely excludes any of them from applying for the adoption of a child. The content of the right to privacy is also the provision of space for the development and realization of personality, and therefore includes "a guarantee of self-determination in the sense of fundamental self-decision, including decisions on the organisation of your own life" (E. Wagner in: Wagner / Šimělek / Langášek / Pospíšil et al. Charter of Fundamental Rights and Freedoms - comment. C. d., p. 281-282). The Constitutional Court is therefore convinced that the contested legal provision, by which one group of persons (registered partners) was completely unreasonably excluded from the possibility of adopting children, is, in its consequences, interfering with their human dignity and violating their right to the protection of private life.
Conclusion
50. Since the contested legal provision was found by the Constitutional Court to be contradictory with the right to human dignity, the right to private life and the prohibition of discrimination laid down in Articles 1, 3 (1), 10 (1), (2) of the Charter and Article 8 (1) and Article 14 of the Convention, it complied with the provisions of Article 70 (1) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 48 / 2002 Coll., the proposal of the Municipal Court in Prague and decided that this provision was to be repealed on the date of the publication of that finding in the Collection of Acts.
President of the Constitutional Court:
JUDr. Rychetský v. r.
In accordance with Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, Judge Vladimir Sládeček was taken to the decision of the full by Judge Vladimir Sládeček and to his reasons by Judge Ludvik David, Jaromir Jirsa and Jiří Zemánek.
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Regulation Information
| Citation | The Constitutional Court found no 234 / 2016 Coll., on the application for annulment § 13 paragraph 2 of Act No. 115 / 2006 Coll., on registered partnership and on the amendment of certain related laws |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 22.07.2016 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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