Found at the Constitutional Court of the Czech Republic No. 295 / 1996 Coll.

Motion denied.

On 28 March 1996 the Constitutional Court of the Czech Republic received a proposal from the Regional Court in Brno to abolish the provision of § 65 paragraph 2 of the Family Act No. 94 / 1963 Coll. ("the Family Act ').

The Regional Court in Brno, Chamber 16 Co., in the appeal proceedings of the appellant JUDr. I. I. against the judgment of the Regional Court in Znojmo of 13 April 1994 No. Nc 702 / 94-13 in respect of the irrevocable adoption of an age-old M. Z., concluded that the provisions of Paragraph 65 (2) of the Law on Family are contrary to the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), with Article 3 (1) and (3), as well as with Article 1 in relation to the provisions of the Declaration of the Rights of the Child (published under No 104 / 1991 Coll.), and therefore decided on the procedure under Article 109 (1) of the Civil Code and Article 64 (4) of Law No 182 / 1993 Coll. By its order of 5 December 1995, sp. zn. 16 Co. 473 / 94, he suspended the appeal procedure and lodged with the Constitutional Court an application for annulment of part of the provision of Paragraph 65 (2) of the Family Act, as amended by Acts No. 132 / 1982 Coll., No. 234 / 1992 Coll. and No. 72 / 1995 Coll.

In the preamble to its proposal, the appellant notes, first of all, that the contested provision does not permit the adoption of an adult child. Paragraph 65 (2) of the Family Act is, in his view, contrary to the law of a higher legal force - Constitutional Act No. 23 / 1991 Coll. - in the context of the Declaration of the Rights of the Child ("Declaration ') published under No. 104 / 1991 Coll. It points to Article 3 (1) of the Charter and Article 1 of the Charter, with the fact that the equality of citizens' rights, that is to say, the general validity and guarantee of fundamental rights and freedoms for all citizens, as well as the generally equivalent protection of those rights, is a fundamental principle of the legal order of society and is therefore also expressed in the initial passages of the basic law of the state - the Constitution of the Czech Republic (hereinafter referred to as the Constitution). This principle - from the point of view of the structure of the rule of law - can only be broken by the legal standard of the same legal force established on the basis of the same rules of its adoption, which make it difficult to negate it (Article 9 (1) of the Constitution). The appellant's consideration of the contravention of Article 65 (2) of the Family Act with the provisions of higher legal force, as set out in the statement below, is based on the assumption that the increased protection of the rights of children (minors) itself is a breach of that principle, but a breach which fully corresponds to that principle, as it is justified by both the Charter (Article 32 (1), second sentence) and the Declaration. The limits of such protection are also given by these provisions - Article 32 (1) of the Charter shows that this is a special protection, and the Declaration must then conclude that these limits are due to the need for special protection for their physical and mental maturity. From the above (and also from the overall concept of the Declaration), it must be concluded that it is the protection of those rights which the child is not able to secure himself, and that this protection is directed or intended to protect the child against the arbitrary interference of other entities - persons, state and institutions - such as the right of the child to name, nationality (Article 7 of the Declaration), the right to humanitarian aid in the event of armed conflict (Article 38 of the Declaration), etc. These limits define the specificity of the protection of the rights of the child, and if exceptional protection of the child is applied to a specific legal life within these limits by means of regulations of lower legal force (laws), then it cannot be said that such protection would be contrary to the principle of equality of rights of all citizens. On the other hand, however, it must be concluded that where the exclusive protection of the rights of the child does not result from the principles listed in the Declaration, it is already contrary to the principle of equal rights for all citizens. In addition, the appellant adds that Article 21 of the Declaration on Adoption aims to protect the child against abuse of the adoption institute, but does not provide for an exclusive right of adoption only for the child.

The current adoption arrangements are designed as the exclusive right of a minor child to adopt. However, this right, in the appellant's view, is not covered within the limits of the special (exclusive) legal protection of the child given by the Declaration and is therefore contrary to the principle of equality of citizens in rights (Article 1 of the Charter). The appellant, as he points out, does not deny the child the right to be adopted, merely takes the view that it is unconstitutional if it is designed as the exclusive right of a minor child.

It also points out that the current adoption legislation is based on the original concept of adoption as a replacement of family relationships where these relationships, whether for objective or subjective reasons, are broken and is primarily designed to protect the rights of a minor child - to ensure proper education, adequate nutrition and proper and healthy development of the child in an adult. They note, however, that there may also be reasons and interest among others in adopting that adoption affects not only family law relations, but also relationships such as property law, housing, etc. (as far as legal relations are concerned) and also social relations. In this context, the appellant also refers to the fact that some of the surrounding states also know the institution of the learning age. The appellant acknowledges that the law is based on the principle that only a minor child can be adopted, and thus the conditions for adoption are also laid down, but since only in the contested provision is that principle expressed in a coherent manner, it proposes either the abolition of that provision as a whole or, in the light of the linguistic and logical expression of that provision, a link "the abolition of those words in the contested provision, that Paragraph 65 (2) of the Family Act should read as follows:" A minor may be authorised only if he is adopted for the benefit. "

The Constitutional Court first held that the wording of Paragraph 65 (2) of the Family Act was not changed in any way during the period. SubAmendments No 132 / 1982 Coll., No 234 / 1992 Coll. and No 72 / 1995 Coll. did not affect the contested provision.

Pursuant to Articles 42 (3) and 69 of Law No 182 / 1993, the Constitutional Court sent a proposal from the Regional Court in Brno to the Chamber of Deputies of the Parliament of the Czech Republic. In his statement of 25 April 1996, the then President of the Chamber of Deputies, PhDr. Milan Uhde, confirmed that the Family Act was passed by the necessary majority of Members of the National Assembly on 4 December 1963, signed by the relevant constitutional authorities and duly declared. It further states that the Convention on the Rights of the Child ("the Convention ') provides in its preamble that childhood is entitled to special care and assistance and that, for its physical and mental maturity, the child needs special guarantees, care and adequate legal protection before and after birth. Accordingly, the Charter provides for special protection for children in Article 32 (1). Article 20 (1) and (2) A child temporarily or permanently deprived of a family environment or a child who, in his own interest, cannot be left in that environment shall be entitled to special protection and assistance provided by the State. The State shall provide such a child with alternative care in accordance with its national legislation. The adoption of the child is an important decision on its personal status and it is therefore always necessary to examine carefully whether all the conditions for adoption are met. Only minors may be admitted. However, the authorisation must be for the benefit of the adopters. This is the basic principle of adoption adjustment. All other conditions laid down by the law are essentially designed to ensure that this basic condition is met. In any case, only material security can be understood as beneficial for the adopted child. The purpose of this institute is to create, as far as possible, relationships between parents and their children where the natural conditions for parental relationship cannot be fully applied. To argue the proposal of the Regional Court in Brno, which states that the provision of Section 65 (2) of the Family Act is contrary to the law of the higher legal force - Constitutional Act No. 23 / 1991 Coll. - draws attention to the fact that the Charter, as a constitutional law of the Federal Assembly of the Czech and Slovak Federal Republic, has been enacted by the Constitutional Act No. 23 / 1991 Coll., where it was established in § 1 (1) that constitutional laws, other laws and other legislation, their interpretation and application must comply with the Charter. This supra-constitutional concept of the Charter has not been taken over by the Constitution and replaced by Article 3. It stated that the Charter had the same legal power as the Constitution and other parts of constitutional order. It states that the provision of § 65 (2) of the Family Act or part of the provision of § 65 (2) of the same Act, expressed in the words" and this', is not contrary to the constitutional order of the Czech Republic or to the international treaties by which the Czech Republic is bound. It then concludes that it is up to the Constitutional Court to assess the constitutionality of the contested provision of the Family Act and to give its decision.

The appellant justifies the proposal to repeal the provisions of Paragraph 65 (2) of the Family Act by contradicting Articles 3 (1) and 3 and Article 1 of the Charter following the Convention. In essence, it considers that the current provision of adoption in the Family Act is designed as an exclusive right of a minor child and the contested provision, in which that principle is expressed in a mandatory manner, thus provides a minor child with special protection of his rights which goes beyond the Convention and Article 32 (1) of the Charter. This runs counter to the principle of equality and the prohibition of discrimination, as it constitutes a privilege for underage children in their right of adoption compared to those of age.

It is therefore the task of the Constitutional Court to assess whether the conditions laid down for the personal application of the contested rule do not infringe the principle of equality in rights generally expressed in Article 1 of the Charter and guaranteed and specified by Article 3 (1) of the Charter, according to which fundamental rights and freedoms are guaranteed to all without distinction of sex, race, colour, language, faith and religion, political or other sentiments, national or social origin, membership of a national or ethnic minority, property, genus or other status.

Constitutional principle of equality in rights enshrined in Article 1 The Charter cannot be considered absolutely and equality cannot be understood as an abstract category. The Constitutional Court of the CSFR has already expressed its understanding of equality, enshrined in that article, as a relative equality, as all democratic constitutions mean it, only demanding the removal of unjustified differences (the finding of the Constitutional Court of the CSFR published under No 11 of the Reports of the Resolution and the findings of the CSFR). The principle of equality in rights must therefore also be understood in such a way that legal discrimination in access to certain rights between legal entities must not be an expression of pleasure, but does not imply that any right must be granted to anyone.

When assessing the veracity of the proposal to abolish the provision of Section 65 (2) of the Family Act, account should be taken of the overall regulation of the adoption institute in the Family Act. The concept of adoption itself does not directly define this law. The applicable legislation of the adoption institute in the Family Act provides for both the way in which the adoption takes place and the legal consequences thereof. In deciding on the Constitutional Court's proposal, the adoption process itself is important, in particular the act by which the adopter accepts a foreign child as his own and by which he creates a new educational and family environment for the adopted child. This act under the applicable legislation is completed by a decision of the court which has constitutional effects, but which cannot be issued without the legally relevant behaviour of the acquirer. Therefore, in terms of maintaining the principle of equality, the position of the adopters must be assessed in particular. It is the will of the future adopter, which is not only a necessary but also a determining and initial precondition for the creation of the adoption. (Under Section 63 of the Family Act, the adoption procedure can only be initiated on the proposal of a future adopter, who also has a proposal - by which the court is fully bound - during the procedure.) It is for this reason that the right to adopt (understood by the theory of the right as subjective) must be extended primarily to the adopters. In relation to them, the violation of the principle of equality cannot be clearly imported. The status of all adopters is the same from the point of view of the legislation in force; they can only adopt a minor's child. It remains therefore to be considered the question which forms the essence of the proposal, namely whether the legislator has infringed the principle of equality by not including the elderly in the scope of the potential adopted. From the point of view of the applicable legislation of the adoption institute, the status of children and persons of age is undoubtedly not the same. However, according to the Constitutional Court, this is not an inequality that achieves the intensity of the unconstitutional inequality. It is justified by the natural objectively existing and evident differences between minors and adults, the difference given by the urgency of the need to ensure alternative family relationships for minors. Therefore, the difference that the legislator makes between underage children and adults in the contested provision cannot be regarded as unfounded or determined arbitrarily or as discriminatory. (Indeed, similar differences, although not entirely comparable, can be found in other legal sectors of our rule of law, for example in the provision of Section 479 of the Civil Code, which grants a more favourable status to the offspring of minors aged in proportion to the offspring, similarly, criminal law sets aside a group of minors from the general conditions of criminal liability, for which the conditions and content of criminal liability are different.)

If the appellant points to the existence of other reasons for adoption, other than the replacement of family relations, where such relations, whether for objective or subjective reasons, are torn off, in this context it also refers to the earlier adoption legislation in force in our State or in some neighbouring States, it should be noted that, in the case of the contested provision, it is not possible for the legislature to intervene in the case of the contested provision.

Finally, it should be noted that Article 3 (3) of the Charter, which the appellant also refers to (but without further justification for its proposal), provides that no one must be harmed by the rights of the application of his fundamental rights and freedoms, thus clearly does not fall under the provision under consideration. For those reasons, the Constitutional Court considers that Paragraph 65 (2) of the Family Act does not contradict Articles 3 (1) and 3 and Article 1 of the Charter and therefore rejected the application for its annulment.

The right to give a different opinion in the Protocol on the Act on the Act on the Act on the Constitutional Court was exercised by the judges of the Constitutional Court of the Czech Republic, Dr Vladimir Klokot and Dr Vladimir Paul.