The Constitutional Court found no 244 / 2010 Coll.
The Constitutional Court found of 8 July 2010 on the application for annulment of § 57 paragraph 1 of Act No. 94 / 1963 Coll., on the Family
Valid
The Constitutional Tribunal found
Text versions:
20.08.2010
244
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 8 July 2010 in plenary of the President of the Court of Paul Rychett and Judges František Duchony, Vlasta Formánková, Military Güttler, Pavel Holländer, Ivana Janů, Vladimir Krorka, Dagmar Lastovecký, Jiří Mucha, Jiří Nykodým, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of Z. S. and II. Senate of the Constitutional Court for the annulment of § 57 paragraph 1 of Act No. 94 / 1963 Coll., on the family, with the participation of the Chamber of the Czech Parliament of the Czech Republic as parties to the proceedings
as follows:
Paragraph 57 (1) of Act No 94 / 1963 Coll., on Family, is repealed on 31 December 2011.
Reasons
Recital of the proposal
A.
Circumstances which led to the submission of a constitutional complaint under point II.II of ÚS 405 / 09
1. In due course and in due course of the formal constitutional complaint registered as sp. zn. II. ÚS 405 / 09, the complainant requested that the Constitutional Court repeal its decision of 17 December 2008 No 30 of the Cdo 1493 / 2008-69, judgment of the Regional Court of Brno of 11 October 2007 No 13 of Article 375 / 2006-35 and the judgment of the District Court of Jihlava of 2 August 2006 No 21 C 36 / 2006-14 of the alleged violation of the fundamental rights of the complainant, which are guaranteed by Articles 10 (2), Article 11 (1) and Article 39 of the Charter of Fundamental Rights and Freedoms (hereinafter "Charter") and Articles 6, 8 and 13 of the Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter "Convention"). Together with this, the complainant sought the annulment of Section 57 (1) of Act No. 94 / 1963 Coll., on Family, in the words "within six months."
2. In his constitutional complaint, the complainant stated that, on the basis of the legal presumption of the paternity of his mother's husband under Section 51 (1) of the Family Act, he had been entered in the register as the father of the born L. S. However, in October of the same year, the complainant's wife asked him to move out of the common flat, which the complainant claimed he did not understand precisely because of the recent birth of son L. and also because he and his wife were planning to build a family home together. In November of the same year, the complainant found that his wife had been having an affair with another man for at least two years. When the wife then left the joint apartment in December, while cleaning the common wardrobe, the complainant found among the valuables a negative film which contained in part family photos and partly a record of the lover's adventure of the complainant's wife with her lover. The complainant suspected that he was not the father of a child born in February - and that he was on a business trip at the time of his conception. He therefore decided to perform a DNA test with the accredited company Generi Biotech, s. r. o. The test confirmed that the complainant is not the biological father of L. S.
3. In its complaint, the complainant also stated that, in the context of divorce proceedings, the wife had proposed a solution to the question of the actual paternity of the second born child if he waived his legal claims in the context of the settlement of their joint assets. In its comments on the constitutional complaint, the complainant's (ex-wife) wife said: "It is true that I offered the complainant a comprehensive solution in the settlement of the common assets of the spouses by addressing the question of paternity, and I asked [after me] not to pay the market value of the cooperative apartment, which was transferred to me free of charge by my grandparents for the duration of the marriage, and therefore, if I had to pay the complainant half of the market value of the cooperative apartment, he was very financially favoured, so today he cannot claim that my position is immoral. It was the complainant who strictly insisted on his rights and on the property settlement, which was in compliance with the law, but was certainly not in order from a factual point of view." As mentioned above, the complainant did not accept this "comprehensive solution '.
4. Instead, on 17 January 2005, the complainant lodged with the Public Prosecutor's Office an initiative to file a motion to deny paternity within the meaning of Section 62 of the Family Act. But the Attorney General's office failed to do so. In response to the complainant's reply of 18 July 2005, the prosecutor stated that such a proposal was a "measure of a very exceptional nature ', with the possibility to intervene in the" established status conditions of the child, inter alia, for fulfilling the statutory conditions of the child's interest in denying paternity'. It emphasised that this could only be "if it can be demonstrated reliably that a man to whom the legal presumption of paternity does not beget a child." This is precisely what the prosecutor did not consider to be proven. It stated that "evidence by expert opinion in the context of the complaint investigation... cannot be carried out ', but at the same time the result of a DNA test carried out by a private company" is in no way evidence which could possibly be supported by the plaintiff's assertion'. According to a communication from the prosecutor, the complainant's wife "at the Prosecutor's Office stated that she had been intimate (only with the complainant) at the time of the relevant conception and that she did not agree to any involvement of her son L. in the expert opinion '. A similar reply was received from the complainant following its request to review the handling of its original complaint in September 2005.
5. On 7 March 2006, an action was served on the District Court of Jihlava by the complainant for the denial of paternity to a minor of L. S. The contested judgment of the Court of First Instance of 2 August 2006 rejected the action in view of the futile expiry of the pre-compulsory period under Paragraph 57 (1) of the Family Act. However, the district court decided to pay the costs by applying the provisions of Paragraph 150 of the Civil Code, and the defendant (ex-wife of the complainant) did not pay the costs on grounds of special consideration. This reason was seen by the district court mainly in the fact that, according to an anonymous expert opinion, the complainant was not the biological father of the child and, furthermore, that, during the marriage, the former wife of the complainant had an affair with another man, and this fact was proved in divorce proceedings. In order to appeal the complainant, the Regional Court in Brno confirmed the judgment of the Court of First Instance in the contested judgment of 11 October 2007, but changed the statement on reimbursement of costs in such a way that the complainant was obliged to compensate his ex-wife for the costs of the proceedings, since the applicant, in the view of the Regional Court, had to be aware that, under the applicable legislation, his application could not be sustained. The Supreme Court, subsequently challenged by the order of 17 December 2008, refused the complainant's leave as it found no reason for admissibility under Paragraph 237 (1) (c) of the Civil Code.
B.
Complainant's arguments concerning non-constitutionality § 57 (1) of the Family Act
6. The complainant saw in the procedure of the courts which applied the contested provision of Paragraph 57 (1) of the Family Act a breach of its fundamental right to protect family life within the meaning of Article 10 (2) of the Charter and Article 8 (2) of the Convention (paragraphs 7 to 9 below). At the same time, he stated that the application of Paragraph 57 (1), in conjunction with Paragraph 62 of the Family Act, infringed his fundamental right to apply to an independent and impartial court within the meaning of Article 36 (1) and (2) of the Charter, as well as Articles 6 and 13 of the Convention (paragraph 11 below). Finally, the complainant also pointed out the fundamental right of ownership (Article 11 of the Charter, paragraph 12 below). In addition to the annulment of the contested decisions of the general courts, he therefore also proposed in his constitutional complaint that the Constitutional Court should repeal the provision in question. In support of his proposal, the complainant made the following arguments.
7. First, in the complainant's view, the determination of the beginning of the legal period of limitation for the submission of a proposal to deny paternity at the time when the alleged father learns that a child was born will not stand in terms of the fundamental right to protect family and private life within the meaning of Article 10 (2) of the Charter and Article 8 (2) of the Convention. With reference to the decision-making practice of the European Court of Human Rights ("the European Court 'or" ECLP'), namely the judgment in Kroon and Others case-law of 27 October 1994 (judgment of the ECLP of 27 October 1994 in Case No 18535 / 91, all the decisions referred to below are available in the HUDOC database, http: / / www.echr.coe.int / ECHR / EN / / / / Header / / / Case-Law / HUDOC / HUDOC + Database /), the complainant considers that Article 8 of the Convention guarantees the abolition (annulment) of family ties which are not the result of a biological link to transfer of biological and social reality over legal conjecture and the requirement of legal certainty and that any presumption of paternity can be effectively refuted. The complainant also referred to the judgment of the ECHR in the Shofman case against Russia (judgment of the ECHR Chamber of 24 February 2006, complaint No 74826 / 01), where, in the complainant's view, the European Court ruled on almost identical factual and legal circumstances. According to that judgment, the refusal to modify the status of a child, determined on the basis of a statutory presumption of paternity, is contrary to the Convention as a result of a precondition for bringing an action for the denial of paternity. The introduction of a claim period for denial of paternity is justified, according to the European Court of Justice, by an attempt to ensure legal certainty in family relations and to protect the interests of the child, but only in cases where the complainant knew or had reason to believe that he had not been the father of a minor child since the first day of the child's life, but for reasons not related to the law, he did not take any action to deny paternity within the legal period (the complainant also refers to other decisions of the European Court of Justice - the decision of the Chamber of the ECHR on non-acceptability of 19.10.1999, Yildirim against Austria, complaint 34308 / 96 and judgment of the ECHR of 28.11.1984, Rasmussen against Denmark, complaint No 8777 / 79).
8. The unsustainability of the existing legislation, according to the complainant, is repeatedly highlighted by the Constitutional Court itself. In that context, the complainant referred to Resolution sp. zn. III. ÚS 289 / 07 of 26.4.2007 and Resolution sp. zn. III. ÚS 1506 / 07 of 17.1.2008 (both, like the other decisions cited by the Constitutional Court, are available at http: / / nalus.ujud.cz). In addition, the complainant also referred to the finding of sp. zn. II. ÚS 568 / 06 of 20.2.2007 (N 33 / 44 SbNU 399 *), where the Constitutional Court, referring to professional literature, stated that "the family is primarily a biological link, then a social institute which is only subsequently anti-cited by legislation '.
9. In that context, the complainant stated that the period of support did not strengthen confidence in personal relations, as it led rather to the legal father actively establishing his biological paternity within six months of the birth of the child. Legal regulation must respect the social implications of its relationship with a minor child. The relationship is of fundamental importance for the development of the child itself, its mental balance, the development of its personality and its inclusion in society. In the case of the complainant, however, such a link is missing. Moreover, there are a number of obligations arising from his legal status, in addition to the maintenance obligation, for example the obligation to take care of the child's upbringing properly. The implementation of these obligations requires emotional, temporal and material investment, without ensuring that the minor child concerned itself does not later wish to achieve a change of status in order to relieve himself of possible obligations to the complainant. This leads to a clear discrepancy between the complainant's obligations and the child's presumed obligations.
10. In the complainant's view, the child itself is also affected by the situation. Under Article 8 of the Convention, a minor child has the right to have a legal relationship with his real (biological) father (here the complainant points to the judgment of the ECHR Chamber of 7 February 2002, Mikuleć v Croatia, complaint No 53176 / 99) and also has the right to know his origin, which is guaranteed by Article 7 of the Convention on the Rights of the Child (published under No 104 / 1991 Coll.).
11. Secondly, in the complainant's view, the application of Paragraph 57 (1) in conjunction with Paragraph 62 of the Family Act infringes the fundamental right to seek an independent and impartial court within the meaning of Article 36 (1) and (2) of the Charter, as well as Articles 6 and 13 of the Convention, by the procedure laid down therein. In fact, the legislation in force does not allow for the question of paternity if the legal period of detention has expired. Although the Family Act allows the legal father to initiate the Supreme Prosecutor's Office's motion to deny paternity, there are no effective means of enforcing such a motion. In addition, it follows from the reply of the Supreme Prosecutor to the complainant's complaint that the Supreme Prosecutor does not have effective means of ensuring the legal protection of the complainant's fundamental rights (the complainant pointed out in that connection that the Supreme Prosecutor was unable to order expert examination of the child's DNA, although it is not possible to use the results of the DNA tests carried out at the initiative of the father of a private company). Finally, the complainant drew attention to some of the decisions of the Constitutional Court, where the Constitutional Court appealed to the Supreme Prosecutor to reconsider his approach, when he refused to address the complaint for a claim to deny paternity within the meaning of Article 62 of the Law on Family with reference to the absence of the child's interest in adjusting the circumstances (in addition to the resolution cited in paragraph 8 above, the complainant referred to resolution sp. zn. IV. ÚS 158 / 06 of 24 April 2006 and resolution sp. zn. IV ÚS 466 / 07 of 28.5.2007).
12. Finally, the complainant also pointed out that its property rights were affected. Infringement of the right to own property pursuant to Article 11 The Charter can be seen in the obligation to perform for biological parents or, where appropriate, for the State, as well as as as a result of the child being his unwavering heir until the age of 18.
C.
Submission of the application for annulment of Paragraph 57 (1) of the Law on the Family of the Plenary Constitutional Court
13. By order of 23 June 2009 No. II. ÚS 405 / 09-58, the Second Chamber of the Constitutional Court concluded that, by applying Paragraph 57 (1) of the Law on the Family in the words "within six months", a fact arose which is the subject of a constitutional complaint, and the complainant also argued that the provision in question was inconsistent with the constitutional order. For this reason, the Constitutional Court referred its application to the full court pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic for annulment of that provision.
14. At the same time, however, the Senate of the Constitutional Court stated that the fact in question was the application of the full provision of Paragraph 57 (1) of the Family Act. In fact, if the term of the term of refusal of paternity in the words "within six months," as proposed by the complainant, the Constitutional Court would in fact create an entirely new legal standard providing that the spouse of the mother of the child can deny paternity at any time, thereby conflict with the fundamental rights of the child to protect private and family life pursuant to Article 8 of the Convention, Article 32 (4) of the Charter and Article 8 (1) of the Convention on the Rights of the Child, or with the widespread interest of the child, the monitoring of any activity involving children, whether carried out by public or private social care facilities, courts, administrative or legislative bodies under Article 3 (1) of the Convention on the rights of the child, or with the guarantee of special protection of children and adolescents under Article 32 (1) of the Charter.
15. In addition, the Chamber of the Constitutional Court added that the provision of Paragraph 57 (1) of the Family Act is contrary to the right to respect for the private and family life of the child's father as defined in the judgment of the ECHR in the Shofman case against Russia (cited in paragraph 7), to the right to inform the father of the child as a component of the right to protect his or her privacy, and finally to the right to have an effective remedy for fundamental rights within the meaning of Article 13 of the Convention. The inconstitutionality of Paragraph 57 (1) of the Family Act, according to the opinion of the Senate of the Constitutional Court, consists primarily of the unbalance of the fundamental rights and interests of the father of the child whose paternity was determined on the basis of the first presumption of fatherhood, the child and his mother. Nor can the conclusion on the non-constitutionality of that provision for conflict with the child's own interests be excluded. Therefore, pursuant to Article 78 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., hereinafter referred to as "the Law on the Constitutional Court ', the Chamber of the Constitutional Court decided to submit an application for annulment of the entire provision of Paragraph 57 (1) of the Law on the Family which was applied to the case, thereby creating a procedural space for a comprehensive assessment of the conflict of fundamental rights.
Recital of the observations of the parties
16. The Constitutional Court requested file documentation and invited the parties to comment on the application for annulment of the contested provision. The Ministry of Justice also called for comments in respect of its competence.
17. In its observations signed by its President Sobotka, the Senate stated that the contested provision has been in force since 1 April 1964, without prejudice to any amendment. Since the Senate was established only in 1996, it is clear that it did not participate in the approval of this provision.
18. The Chamber of Deputies, in its observations signed by its Vice-President Miroslava Nemcová, summarized the relevant parts of the explanatory memorandum to the relevant government bill on the family, including the contested provision, as well as the legislative process at the National Assembly of the Czechoslovak Socialist Republic in its III parliamentary term. It also added that, despite the extensive amendment of the Family Act in the years to come, the contested provision has not been amended.
19. The Ministry of Justice stated in its observations that the legal means to determine paternity are based on several social requirements. First of all, the key is that the child should have both parents. Another is the requirement that the legal relationship in as many cases as possible be consistent with the biological relationship. Last but not least, it is desirable that this relationship be determined as soon as possible after the birth of the child, which meets the requirement of maximum stability of the legal relationship between the parent and the child. In applying all these requirements, it is necessary in particular to follow the principle of protection of the interests of the child. In the case of the complainant, according to the Ministry of Justice, the absence of a biological relationship between the complainant and the second intervener is demonstrated (i.e. a child whose paternity the complainant denies). It is important to assess whether or not it is in the interests of the child to maintain a legal relationship with a factual situation. Under these circumstances, the Attorney General should have considered the possibility of filing a claim to deny paternity, as those facts fulfil the legal conditions under which this action can be taken. In this case, it cannot be satisfied only with the general assertion that the denial of fatherhood by a man who is clearly not the biological father of a child and who has no other emotional relationship for that child is not in the child's interest. However, the Ministry of Justice does not agree with the proposal to abolish the contested provision of the Family Act, but also with regard to the fact that the current legal situation and the current practice of the judicial authorities within its limits is in conflict with the case law of the Constitutional Court and the European Court of Justice in some cases, it proposes to adopt its legislative amendment. This should specify the conditions under which a claim to deny paternity may be made even after the legal period laid down by law in cases where it is not in the interests of the child or of the father entered into the register to maintain the inconsistency of the legal relationship and the state of fact.
20. While the Ombudsman is not a party to the proceedings on the complainant's proposal to abolish the provisions of Paragraph 57 (1) of the Family Act, he also commented on this proposal as a conflict-of-law guardian of minor L. S. in proceedings concerning a constitutional complaint. In his observations, he did not recommend complying with the proposal in the light of the established system of legal assumptions of paternity and the timelimit of the possibility of denying paternity justified by the need for stability of the family as a basic social unit. At the same time, he pointed out the obvious conflict of several legitimate Constitution of the Czech Republic of protected interests - in addition to the legitimate interest in denying "matrix paternity" in competition with the precisely established paternity of the biological and the right of the child to know his or her parents, the mother's right to protect her or her honour and privacy and the child's right not to interfere with his or her private life, honor and reputation. At the same time, he stressed that there was no legal regulation allowing the courts to impose an obligation on participants (mother, mother and child) to submit to DNA tests and the risk of taking such tests in a random manner.
Derogation of the contested legislation
21. Paragraph 57 (1) of the Family Act reads: "The husband may, within six months of the day when he learns that his wife had a child, deny in court that he is his father."
Constitutional conformity of the legislative process
22. According to Article 68 (2) of the Constitutional Court Act, the Constitutional Court finds in the proceedings for the annulment of laws and other laws whether the contested law or other legislation has been adopted and issued within the limits of the Constitution of the Czech Republic by a specified competence and by a constitutional procedure. As is apparent from the observations of the parties, the contested provision was part of the original version of the 1963 Family Act, which had not been amended in that period. The assessment of the legislative process would therefore mean assessing compliance with the existing constitutional provisions in force at the time of the adoption of the law. It is based on Article 66 (2) of the Law on the Constitutional Court, according to which an inadmissible proposal is made if the constitutional law, with which the draft act under review is in conflict, has ceased to be valid before the application of the Constitutional Court, so the Constitutional Court states that, in the case of legislation issued before the entry into force of the Constitution of the Czech Republic on 1 January 1993, it is entitled to review only its content compliance with the existing constitutional order, but not the constitutionality of the procedure of their formation and observance of the normative competence (cf. the finding of 27 October 1999 sp. For this reason, the Constitutional Court could not assess the procedure in question either.
Own review
A.
Background of the review in terms of the right to the protection of private and family life
23. The right to the protection of private and family life, within the meaning of Article 10 (2) of the Charter and Article 8 of the Convention, prevents public authorities from arbitrarily interfering in such an intimate sphere as the relationship between parents and children. These relationships are the most natural expression of human identity, and the law in democratic and free society must respect their existence. The meaning and nature of family relations and family coexistence are not primarily legal; the law merely grants protection for their real existence. This protection cannot then be ensured solely by the obligation to refrain from certain public intervention. At the same time, the State is obliged to adopt legislation guaranteeing the legal recognition of family relationships and defining their content in relations between family members and third parties.
24. From the nature of the matter, the legal definition of the family must reflect primarily the existence of biological relations. This also implies that the legal determination of paternity, if not the adoption case, should correspond to actual biological paternity. This requirement is also reflected in the subjective right of the child's father to respect his biological paternity by public authority. It also corresponds to the right of the child to know his biological parents, expressly expressed in Article 7 (1) of the Convention on the Rights of the Child.
25. The importance of biological linkages for the legal definition of the family has already been highlighted by the Constitutional Court in its finding, sp. zn. II. ÚS 568 / 06 of 20.2.2007 (N 33 / 44 SbNU 399). In this case, the Constitutional Court ruled on a constitutional complaint related to the actions of the Supreme Prosecutor within the meaning of Article 62 of the Family Act, lodged on the initiative of the grandmother of the child who questioned the paternity of the legal father to the child of his deceased daughter. The Constitutional Court noted in this finding that "where there is a conflict of interest of persons of blood relatives, in which there is evidence of social ties forming the typical characteristics of the family, with the interest of persons unrelated, between whom and the child in the past have also been created as a result of the prolonged coexistence of the above-mentioned connection of emotional, social and other, which would otherwise fulfil the characteristics of the so-called de facto family ties, there is no need - if there is no other urgent reason - to provide protection for those family relations which they fulfil in addition to the links of emotional, social and blood relations'.
26. On the other hand, ensuring a general requirement of compliance with biological and legal paternity cannot lead to disproportionate interference in the private life of the parents of the child, which would consist in the obligation to inform the public authorities of the facts of their intimate life. This would be necessary if the question of paternity had to be determined beyond reasonable doubt. But such a request would, in principle and in terms of the right to the protection of private and family life, unduly interfere with the private sphere of individuals, the existence of mutual trust between the parents of the child. The paternity of parents is thus determined on the basis of assumptions based on the cultural framework of society and allowing the determination of paternity to take place without excessive formal requirements. This is also the case with the so-called first presumption of paternity, as set out in Paragraph 51 (1) of the Family Act, according to which, in short, the mother's husband is considered the father of the child. That assumption, which was already in Roman law, is based on the assumption that the mother's husband is also the real father of the child.
27 However, the very assumption cannot, of course, guarantee the real existence of a consensus between legal and biological paternity. Thus, any contradiction between legal and biological paternity raises a legitimate question as to how the removal should be legally ensured. Nor can it be forgotten that such a situation also significantly interferes with the private sphere of a legal father who is not a biological father and whose legal paternity was determined only on the basis of the presumption of paternity. This is reflected in his private and family life in the meaning as defined in Article 10 (2) of the Charter, and can also interfere with the right of the child to know his parents within the meaning of Article 7 (1) of the Convention on the Rights of the Child (cf. paragraphs 23 and 24 above).
28. It is precisely to eliminate the conflict between legal and biological paternity that the father's actions under the contested § 57 (1) of the Family Act serve. This provision concerns primarily the legal status of the legal father and child resulting from their family relationship. The purpose pursued by this provision can undoubtedly be considered consistent with the interest that the legal determination of paternity should correspond to biological paternity. In general, this conclusion can also be found compatible with the right of the child to know his parents, which is explicitly stated in Article 7 (1) of the Convention on the Rights of the Child.
29. However, the requirement of compliance with legal and biological paternity cannot be considered absolute. The legal relationship between the father and the child is not only a mechanical reflection of the existence of a biological relationship, but, over time, even in the absence of this relationship, a social and emotional link may develop between the father and the child, which, in terms of the right to the protection of private and family life, will also enjoy legal protection. In this case, the continued duration of legal relations will depend on several factors, among which the child's interest will play an important role - pursuant to Article 3 (1) The Convention on the Rights of the Child must be a leading aspect for the decision-making of public authorities, but the child also has the right to know his biological parents, under Article 7 (1) of the Convention on the Rights of the Child. However, neither the interest of a biological father who is not in a legal father's position nor the interest of a legal father who, in turn, is not a biological father and is fighting against his legal paternity, can be denied relevance in the assessment. There is also a need to save the right to protect the private and family life of the child's mother.
30. In view of those circumstances, it is necessary to consider whether the right to the protection of family and private life guaranteed to the legal father of the child by Article 10 (2) of the Charter and Article 8 of the Convention implies his right to seek by decision to remove the legal situation in which legal paternity does not correspond to biological reality and, if so, to what conditions. Further rights and interests, as defined at the previous point of the finding, must then be weighed in search of an answer to this question.
31. The Constitutional Court has not yet addressed this issue directly. In his decision-making practice, he was confronted primarily with the constitutional complaints of complainants who opposed the announcement by the Attorney General that their incitement to bring an action for denial of paternity within the meaning of Section 62 of the Family Act was postponed. In this context, the Constitutional Court has repeatedly stated, referring to the above-mentioned decisions of the European Court, that "the existing legal situation where a spouse has the right to deny paternity only within six months of the birth of the child... and when the High Prosecutor refuses to bring the action, may, under certain circumstances, be in conflict with, in particular, Article 8 of the Convention... and, of course, with fundamental rights and freedoms guaranteed by the constitutional order... '(Resolution sp. zn. III of the ÚS 289 / 07 of 26 April 2007, Resolution sp. At the same time, the Constitutional Court appealed to the Supreme Prosecutor to take into account the decision-making activities of the European Court in interpreting Article 8 of the Convention when deciding whether or not to bring an action under Paragraph 62 of the Family Act.
32. According to him, contracting states have not only an obligation to protect individuals from the arbitrary actions of public authorities, but also a positive obligation to ensure effective respect for private and family life. This may also mean an obligation to take measures that affect legal relations between individuals (cf. Mikuleć v Croatia, cited in paragraph 10, paragraph 57, and other decisions cited there). In doing so, account must be taken of the fair balance that must be achieved between the competing interests of the individual and society as a whole. In both cases, the State has some discretion (cf. Mikuleć v Croatia, cited in paragraph 10, paragraph 58, and other decisions cited there). The limits on such discretion are indicated by the other case law of the European Court.
33. In Kroon v Netherlands (cited in paragraph 7), the European Court of First Instance stated that it was not permitted for a legal presumption to prevail over biological and social reality without taking account of both the facts established and the wishes of the persons concerned. To that end, the European Court of First Instance established in Shofman's judgment against Russia (cited in paragraph 7), in which it found a breach of the basic right of the complainant resulting from Article 8 of the Convention as a result of the impossibility of denying paternity. The legislation in question allowed such an option only within a period of one year from the time the person officially registered as father became aware of the birth of the child. That judgment was not found to infringe the Convention as a result of the existence of an annual period of detention, but only as a result of its establishment at the moment when the mother's mother's husband became aware of the birth of the child, without any other means by which the legal presumption given by the father could be used to deny fatherhood in a situation where he was also recognised by the court as not a biological father.
34. The European Court of First Instance itself accepted in its earlier decisions that the introduction of a limitation period for the initiation of paternity proceedings was justified by an attempt to ensure legal certainty in family relations and to protect the interests of the child (Rasmussen v Denmark, cited in paragraph 7, paragraph 41). In another case, he found that, as soon as the limitation period had expired, in order for the complainant to challenge paternity, the weight was higher for the child's protected interests than for the complainant to refute paternity (decision on the acceptance of Yildiri against Austria, cited in paragraph 7). The role of this assessment is also to determine whether the complainant knew, or had reason to believe, that he has not been the biological father of the child since birth, and has not taken any steps to deny his legal paternity, based on a presumption. When assessing the issue of Article 8 The convention is thus more about setting the conditions for running the deadline than about its very existence.
35. The latter decisions of the European Court were then reflected by the Constitutional Court in the assessment of constitutional complaints against the Supreme Prosecutor's procedure. In resolution sp. zn. IV. ÚS 2058 / 07 of 27.3.2008 (U 3 / 48 SbNU 977) The Constitutional Court stated that "from the content of the constitutional complaint lodged, it is unequivocally submitted that the complainant had serious doubts about his paternity during the period in which he was able to exercise his right of action; If he hadn't taken such doubts, he certainly wouldn't have had any reason to verify them using his requested DNA test. However, then the complainant's ignorance of the deadline for bringing an action (whether for its ignorance or for other reasons) appears to have been followed by a procedure - rather" non-progress "- leading to the result for the complainant expressed by the ancient, already formulated Iustinian principle:" vigilantibus, non dormientibus iura subveniunt "-" law helps the vigilante, not the sleeper. "First of all, not a communication from the Supreme Public Prosecutor addressed to the complainant after the legal period of detention, but the complainant himself caused the situation - for his plea inaction - to be seen in general as contradictory with the fundamental right to respect for private life '.
36. In the light of the above conclusions of the Constitutional Court and of the European Court, it can therefore be summarised that the question of the existence of a consensus between biological and legal paternity is reflected in the fundamental law of a person who claims not to be the biological father of a child, for the protection of private or family life within the meaning of Article 10 (2) of the Charter and Article 8 of the Convention, as well as in the right of the child to know his parents, as enshrined in Article 7 (1) of the Convention on the rights of the child. The determination of legal paternity only on the basis of a legal presumption, without giving sufficient legal means of questioning the question of the conformity of legal and biological paternity, and at the same time seeking the abolition of legal paternity in the event of non-compliance with the biological paternity, may constitute a breach of that right in certain circumstances. However, it cannot be concluded that the duration of legal paternity without corresponding to biological reality means public authority without any further violation of the fundamental right of a legal father to private and family life. It is necessary to take into account whether there is a child's interest in the duration of such a condition and whether the legal father knew or could have known that he was not a biological father, had the opportunity to seek from the public authority of determination that he was not a legal father, and ultimately whether he actually exercised that possibility.
B.
Self-assessment of the proposal
37. The subject of the constitutional assessment is whether the possibility of denying paternity within a six-month period, which depends on the time when the spouse became aware of the birth of the child to his spouse, will stand in terms of the constitutionally guaranteed fundamental rights of the legal father, the person whose paternity to the child is legally recognised because of the presumption of paternity of the mother's husband. The Constitutional Court has repeatedly dealt with the issue of the constitutionality of time limits in a number of its findings, stating that the period of prima facie action does not appear without further notice and cannot show signs of unconstitutionality; These can be given only by the "specific circumstances' of the case under consideration, in other words," the assessment of the constitutionality of the time limit is a contextual assessment '[finding sp. zn. These specific circumstances are, according to the present case-law of the Constitutional Court, in particular the inadequacy of the time limit in relation to the timelimit of the time limit for the exercise of the constitutionally guaranteed right [finding sp. zn. Pl. ÚS 5 / 03 of 9.7.2003 (N 109 / 30 SbNU 499; 211 / 2003 Coll.)] or the arbitrage of the legislature when setting the time limit (its anchoring or cancellation) [finding sp. zn. Pl. ÚS 2 / 02 of 9.3.2004 (N 35 / 32 SbNU 331; 278 / 2004 Coll.)].
38. Although legal conjecture, as mentioned above, significantly simplifies the determination of legal paternity, it cannot, by its nature, be regarded as a sufficient guarantee of compliance between biological and legal paternity. For that reason, it is necessary that the rule of law, in addition to the presumption, create legal means by which a person whose paternity has been established on the basis of a presumption and who denies his or her biological paternity, may seek the protection of his or her subjective rights by proving, in proceedings before a competent public authority, that he or she is not the biological father of the child.
39. This requirement is not only based on the right to the protection of private and family life, as the Constitutional Court has analysed in detail in the previous part of this finding, but is essentially linked to the right of everyone to the judicial protection of their subjective rights within the meaning of Article 36 (1) of the Charter.
40. In order to protect the fundamental rights of the legal father, a legal action which may be brought by the Attorney General under Section 62 of the Family Act may not be regarded as a means of protecting the fundamental rights of the legal father. It is a legal instrument which pursues a different purpose than an action under the contested provision. The High Prosecutor may bring such action only in the interests of the child. However, this interest will not be directly identical to that of the legal father. In addition, considering that the complainant is a minor child, the legal relationship between the legal father and the child will, in this case and in particular, monitor the interest of the minor child, which will make it hardly possible to expect the highest prosecutor to file a claim for support.
41. Nor can it be omitted that there is no legal claim to bring an action by the Supreme Prosecutor and that it is at his discretion whether it will proceed to such proceedings. Any initiative by the mother's husband to bring such an action shall not constitute an application on which a decision has to be made to initiate proceedings which, at the same time, would be revisable at the discretion of the Attorney General. This was confirmed several times by the Constitutional Court when it stated in some of its decisions that the procedure of the Supreme Prosecutor or his affidavit by which he notifies the dispatcher of the complaint of the fact that the action will not be brought "cannot be considered to be an intervention by a public authority within the meaning of Article 72 (1) (a) of the Law on the Constitutional Court" (see, for example, resolution sp. zn. IV. ÚS 2058 / 07 cited in paragraph 35, and more detail, resolution sp. (III) ÚS 289 / 07 of 26.4.2007). This means, therefore, that it is up to the Attorney General to examine, in order to use his authority, the question of the child's interest and possible compliance with the interests of the legal father in a particular case, with his discretion not being reconsidered by the court. On the problematic aspects of the proposal of the Attorney General to deny paternity. Jíšová, A.: The proposal of the Attorney General to deny paternity in practice (for discussion). Bulletin of Advocate General No 11 to 12 / 2006, pp. 80 to 86.
42. On the other hand, the contested provision of Paragraph 57 (1) of the Family Act undoubtedly establishes one of the above-mentioned means referred to in paragraph 37, since it allows the mother's husband to challenge his paternity by a defiant action which must be brought within six months of the date on which he became aware that his wife had a child. This creates a certain procedural space for a mother's husband to obtain protection of his rights by stating that he is not the real father of the child, so he cannot be a legal father. However, it should be assessed whether the conditions for its application respect the limits laid down by the right to the protection of private and family life, as detailed in the previous part of the finding, as well as the right to judicial protection within the meaning of Article 36 (1) of the Charter.
43. The contested provision limits the possibility of bringing an action to deny paternity for a period of six months from the date on which the mother's husband became aware that she had a child. It is clear that in the vast majority of cases affected by this provision, the day on which the husband becomes aware of the birth of the child will be the same as the day of birth. However, in such a definition of a period of support, the relevance of the moment when the person whose paternity was based on the presumption of paternity of his mother's husband is fully denied the relevant facts questioning his paternity. It is clear from this point on that point in time that the child's legal father has a real opportunity to assess the further consequences of such findings for his personal life, including the possibility to contact the competent public authority with a proposal to deny paternity within the period for bringing an action for denial of paternity.
44. However, the period thus determined does not reflect the specific nature of the legal relations existing between the legal father and the child. It cannot be assumed that the legal father had or should have known all the relevant facts for a possible interest in denying paternity at the time he became aware of the birth of the wife. Nor can a husband be required to examine, as a precautionary measure, whether certain circumstances indicate that he is not the biological father of the child during the first six months of birth. The establishment of an effective right to seek protection of its right must therefore reflect the other side of the right to the protection of private and family life, which prevents the state from interfering in an arbitrary and disproportionate way with the private and family life of an individual. This means that the legislation cannot ignore the fact that a significant legal interest in denying paternity can arise with (sometimes even a significant) time distance from the birth of the child, as well as the fact that, as the case law of the European Court of First Instance in particular shows, the interest of the legal father in denying paternity (e.g. ESLP Shofman's judgment against Russia, cited in paragraph 7, or the judgment of the Chamber of ECHR Paulík against Slovakia of 10 October 2006, the complaint, No 10699 / 05, where the complainant successfully sought to deny paternity over 30 years from the birth).
45. For these reasons, the Constitutional Court concludes that the contested provision of Paragraph 57 (1) of the Family Act is contrary to Article 10 (2) of the Charter and Article 8 of the Convention as well as Article 36 (1) of the Charter.
Formation of the derogatory statement and its legal consequences for legislators and general courts
46. The Constitutional Court has ruled on the motion of the Second Chamber of the Constitutional Court to abolish the entire contested provision of Paragraph 57 (1) of the Family Act. From this point of view, it points out that the abovementioned grounds for annulment do not in any way call into question the constitutionality of the very possibility of applying a claim within six months of the date on which the husband becomes aware that the wife was born. It is not this authorisation that has not been questioned either by the complainant, but that the possibility of applying the action may be ruled out after the expiry of that period. Nevertheless, the Constitutional Court could not comply only with the application in the words "within six months', to the extent that the complainant requested the annulment of the contested provision.
47. By that procedure, the Constitutional Court would establish a new legal standard which would allow the lodging of an action for annulment, irrespective of the rights and protected interests of persons other than the legal father of the child who intends to deny his paternity, as defined in point 29 of this decision. While the Derogation finding would thus remove the violation of the fundamental rights of the legal father, it would also create other violations of the fundamental rights and protected interests of other persons concerned.
48. As the Constitutional Court has stated above, the establishment of a certain deadline for the submission of a claim to deny paternity is not in itself unconstitutional; However, the definition of that period and the conditions for its operation must respect in a balanced manner all rights and protected interests concerned.
49. It may be considered that, for a certain period of time, a legal father whose paternity was established by a legal presumption should be able to submit a claim to deny paternity, regardless of other circumstances (fundamental rights and protected interests as defined in point 29 of this finding), as is the case now. In such a case, however, the period of six months should be considered to be excessively short, as well as the determination of the beginning of its operation on the date on which the mother's husband became aware of the birth of the child (Paragraph 57 (1) of the Family Act), as is apparent for the reasons set out in paragraph 44 above. In Slovakia, for example, the original six-month period was replaced by a three-year period.
50. However, even after the date so designed, the possibility of denying the paternity of a child to persons who may have a legitimate interest (see paragraph 29 of this Decision), namely the protection of their fundamental rights, cannot be entirely concluded. At present, Section 62 of the Family Act allows only the highest public prosecutor to make a claim to deny paternity, regardless of the course of time, but only in the interests of the child. However, as mentioned in paragraphs 40 and 41 above, this proposal cannot be considered as a sufficient means of protecting rights within the meaning of Article 36 (1) of the Charter and is a question of what is justified in the legal order of the democratic rule of law. In this context it is not without interest that this legal instrument appeared for the first time in the legal order in force in the territory of the Czech Republic in the framework of the so-called racial legislation (§ 2 (3) of Decree No. 180 / 1941 Coll., which issues certain provisions on disputes concerning native or blood origin).
51. In order to ensure the protection of the fundamental rights and protected interests referred to in point 29 of this Decision, it is therefore necessary to adapt in a special way the proposal to deny paternity, which may be submitted in order to protect those rights and protected interests by the persons concerned, including the legal father of the child, to whom the specific period for the proposal referred to in point 49 above has expired. In constructing the admissibility of such a proposal, it will be necessary to take into account in particular whether the legal father of the child could have learned of facts which would call into question his paternity, whether, even with knowledge of these facts, he had taken legal action to deny his paternity and whether the denial of his paternity did not prevent - in a specific case, not on a flat-rate basis - other protected interests, in particular the interest of the child, to whom Article 3 (1) of the Convention on the Rights of the child grants a privileged - but not absolute - position. The legislature should therefore take into account the interests of all the parties concerned, with particular emphasis on the interest of the child and the stability of established family relationships and the need for family facilities for the raising of the child, when setting a new deadline, which also affects other paternity assumptions and other beneficiaries. At the same time, where the legislator provides for the possibility of breaking even the newly set reasonably longer time limits in fully specific and justified cases, which the present regulation confers exclusively under the discretion of the Attorney General, it must clearly lay down not only the conditions for such breaking of the deadline but also clear limits in order to protect the rights of both the child and the mother. In the field of evidence in the field of paternalistic disputes, it will then be necessary to adapt the procedural regulation on the means of obtaining expert opinions from the health sector, the genetics sector, carried out by the method of testing DNA polymorphisms for the obligation of the alleged father, child and mother.
52. Since the derogatory grounds do not relate to the possibility of applying the action within the time limit laid down by the contested provision, but to the exclusion of its later application, and in view of the necessity of creating sufficient time for a comprehensive assessment and the adoption of the new legislation, the Constitutional Court decided on the Constitutional Court, as amended by Law No 48 / 2002 Coll., pursuant to Article 70 of Law No 182 / 1993 Coll., that that provision is repealed on 31 December 2011.
53. In conclusion, the Constitutional Court adds that the assessment of the compliance of the law or other legislation in the proceedings under § 64 et seq., Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, is not only reflected in the plane of validity of the law, but also in the plane of its applicability. The Constitution of the Czech Republic itself does not restrict the protection of fundamental rights and freedoms in cases where the reason for their infringement lies in the application of an unconstitutional rule, only in the abolition of such a rule by the Constitutional Court, but also in relation to the application of such a rule by public authorities. This conclusion is clear from the constant case law of the Constitutional Court, which allows for a review of the repealed law on a proposal from the General Court pursuant to Article 95 (2) of the Constitution of the Czech Republic in the event that it concludes that it is contrary to the constitutional order; e.g. finding sp. zn. In such a case, it is not decisive whether that law has been repealed, but whether the legal rule contained in its wording is still applicable, and the assessment of the question of constitutionality is a prerequisite for the Court's decision on the substance of the case. The Constitutional Court thus decides not to abolish the already repealed law, but to apply it, with the result of an academic statement on the non-application of the legal provision in question, if it is contrary to the constitutional order not only the legal provision, i.e. the legislative instrument, but also its purpose, or the definition of the conditions under which the legislator intended the purpose can be achieved by the constitutional procedure, i.e. the direct application of the constitutional order [cf.
54. The Constitutional Court also followed the above legal conclusions. Any consequence of the non-applicability of the law cannot be limited to the procedure for a draft general court pursuant to Article 95 (2) of the Constitution of the Czech Republic, but also applies to other cases in which the Constitutional Court finds that the law is incompatible with the constitutional order and that the relevant derogatory ground of action affects the legal status of the individual from the point of view of fundamental rights and freedoms. In addition, it is the complainant who followed the protection of his fundamental right by submitting a motion to repeal the law, along with constitutional complaints. The Constitutional Court therefore finds that the determination of the later date of the annulment of the contested provision of the law cannot lead to the conclusion that the general courts must apply that provision to the extent that there is a derogatory ground for action if such application could result in interference with the fundamental right or freedom of the party.
55. Thus, in relation to Paragraph 57 (1) of the Family Act, if the legal father, whose paternity was created on the basis of the first presumption of paternity, becomes aware of the facts which call into question his biological paternity during or after the expiry of the period for lodging the claim, the general courts are obliged not to apply that period and to examine the action in substance even if it is brought after that date. However, non-application of this time limit does not imply the timeliness of bringing an action. In fact, the Constitutional Court did not find it unconstitutional in the very existence of a deadline, but in the exclusion of the possibility of legally relevant questioning of legal paternity. If the general courts decide on the action in question, they will not only have to assess the question of paternity, but also the question of the rights and protected interests set out in point 29 above. Until the legislature redecides on the definition of a period for the denial of paternity, that is to say, it also means assessing whether the action, having regard to the time frame since the finding of the relevant facts for questioning paternity, will stand up to the proportionality of interference with other persons' rights and protected interests.
President of the Constitutional Court:
JUDr. Rychetský v. r.
*) NB: Collection of finds and resolutions of the Constitutional Court, Volume 44, Found No 33, p. 399
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Regulation Information
| Citation | The Constitutional Court found No. 244 / 2010 Coll., on the application for annulment of § 57 paragraph 1 of Act No. 94 / 1963 Coll., on Family |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.08.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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