The Constitutional Court found No 47 / 2021 Coll.
The Constitutional Court found of 15 December 2020 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
09.02.2021
47
FIND
The Constitutional Court
On behalf of the Republic
On 15 December 2020, the Constitutional Court decided under sp. zn.
as follows:
Motion denied.
Reasons
Subject matter
1. On 24 March 2020, the Constitutional Court received a proposal from the Regional Court in Prague to abolish § 63 paragraph 1 of Act No. 91 / 2012 Coll., on Private International Law, in Words "and adoption would also be permitted under the substantive provisions of Czech law." The appellant made this proposal pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') after having considered that the contested part of the Act on Private International Law was contrary to Articles 10 (2) and 36 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as" the Charter') and does not allow the application of Article 3 (1) of the Convention on the Rights of the Child.
2. The appellant is conducting an appeal proceedings against the judgment of the Regional Court in Nymburk No 5 C 407 / 2019-19 of 31.1.2020 under sp. § 17 Co 73 / 2020. This judgment rejected the proposal of two registered partners (a citizen of the Czech Republic and a citizen of Trinidad and Tobago) to recognise the decision of the Supreme Court of the State of New Jersey, the United States of America, by which, inter alia, the registered partners concerned adopted two minor children (citizens of the United States of America). According to the District Court, one of the conditions of recognition under § 63 (1) of the Act on Private International Law was not met, namely that adoption would be permissible under the substantive provisions of Czech law, since the Czech legal order does not allow the joint adoption of a child by registered partners.
Arguments of the appellant
3. The appellant submits that, after assessing the procedural procedure, the documentary evidence and the legislation in question, the district court was right that Paragraph 63 (1) of the Private International Law Act in conjunction with Section 800 of the Civil Code prevented the recognition of a foreign decision on the joint adoption of minors by registered partners. Thus, according to the appellant, the recognition of the foreign decision on the joint adoption of minors by any unmarried couple is already prevented "in the legal context '.
4. As the appellant further points out, it respects the regulation adopted in Section 800 of the Civil Code, which is the result of a social discussion on the joint adoption of minors by a couple of same-sex persons or an unmarried mixed-sex couple and which excludes such adoption in the Czech Republic. However, in a situation where such adoption has been decided abroad, according to the appellant, the contested regulation prevents the court from taking into account the best interests of children who live in the family thus created and have family ties in the territory of the Czech Republic, in which they often reside. This allegedly infringes Article 3 (1) of the Convention on the Rights of the Child.
5. According to the appellant, the contested regulation is also contrary to Articles 10 (2) and 36 (1) of the Charter, since it does not allow the court to provide protection for the family life of the adopters and the adopters who have a legitimate interest in dealing with the legal status of the family and its members in the territory of the Czech Republic, to which they are linked through the citizenship of one of the adopters.
6. The applicant submits that the contested regulation is intended to prevent cases where adoption abroad is intended to circumvent the Czech legislation. However, it also applies to cases where foreign adoption by a Czech citizen occurs without such intent in order to establish and live with a family in a state where this adoption is legal. According to the appellant, even after the annulment of the contested part of Paragraph 63 (1) of the Private International Law, it would still be possible to deny recognition of the adoption decision to circumvent the law, since the reservation of public policy would continue to apply.
7. In line with the finding of the Constitutional Court sp. zn. I. ÚS 3226 / 16 of 29 June 2017 (N 116 / 85 CollU 879), the appellant further states that compliance with the proposal under examination would not lead to "flat-rate parentage of two persons of the same sex, the less common adoption of homosexual couples', as it is only about whether factual and legal reality will be recognised in the Czech Republic.
Proceedings before the Constitutional Court
8. The Constitutional Court called on the Chamber of Deputies of the Parliament of the Czech Republic and the Senate of the Parliament of the Czech Republic as parties to the proceedings to comment on the proposal.
9. The Chamber of Deputies, in its observations signed by its President, Radek Vondráček, summarized the course of the legislative process which led to the adoption of Act No. 91 / 2012 Coll., on Private International Law, stating that it had given its consent to the draft law by the constitutionally prescribed procedure and the law was signed by the relevant constitutional authorities and declared in the Collection of Laws of the Czech Republic.
10. The Senate, in its observations signed by its President Miloš Vystrchil, stated that the contested part of Paragraph 63 (1) forms an unchanged part of Act No. 91 / 2012 Coll., on Private International Law, from the outset, even the remainder of Section 63 was never amended. The Senate further described the legislative process leading to the adoption of the law, with the conclusion that the bill was adopted by the Senate within the limits of the Constitution of the established competence and in a constitutional manner.
11. In accordance with Article 69 (2) and (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court), the proposal was sent to the Government of the Czech Republic and to the Ombudsman, with the possibility of intervening. However, both the Government and the Ombudsman said that they would not enter the proceedings.
12. The Constitutional Court, pursuant to Article 49 (1) of the Law on the Constitutional Court, requested the opinion of the Office for International Law Protection of Children, which did not, however, comment on the application within the prescribed period.
13. The Constitutional Court did not expect further clarification of the case from the oral hearing, which is why it abandoned it under Paragraph 44 of the Constitutional Court Act.
14. The Judge-Rapporteur in the case under examination was originally appointed by Pavel Šámal in accordance with the current schedule of work. After his proposal for a finding was not accepted at the plenary hearing, Pavel Rychetský was appointed by the President of the Constitutional Court under Article 55 of the Law on the Constitutional Court as Judge to the rapporteur, Milada Tomková.
Derogation of the contested provision
15. Paragraph 63 (1) of Act No. 91 / 2012 Coll., on Private International Law, reads (the contested part is marked in bold):
"If, at the time of adoption, one of the adopters, or an adopted citizen of the Czech Republic, a foreign decision on adoption in the Czech Republic is recognised, unless this is contrary to public policy and the exclusive competence of the Czech courts is prevented and adoption would also be permitted under the substantive provisions of Czech law. Paragraph 16 (2) shall apply to recognition procedures. '
Presumption of a formal assessment of the proposal
16. The Constitutional Court is responsible for hearing the application in question, which was submitted to it by a legitimate appellant pursuant to Paragraph 64 (3) of the Constitutional Court Act. The application is admissible and fulfils all the statutory requirements.
Review of the procedure for the adoption of the contested provision
17. The Constitutional Court first referred to the question whether the contested provision was adopted and issued in a constitutional manner and within the limits of the Constitution provided for.
18. It follows from the relevant parliamentary press, the data on the course of the vote and the statements of the chambers of Parliament that the Chamber of Deputies approved the draft law properly at its meeting of 9 November 2011 (Resolution No 840). The Senate then approved the draft law at its meeting on 25 January 2012, as referred to by the Chamber of Deputies (Resolution No 491). The President of the Republic signed the bill on 13 February 2012 and after the signature of the Prime Minister the law was declared in the Collection of Laws in the amount of 35 under No. 91 / 2012 Coll. Act No. 91 / 2012 Coll., on Private International Law, in which Paragraph 63 (1) contains the part of the contested proposal, was therefore adopted by the constitutional procedure, signed by the relevant constitutional authorities and duly declared.
Assessment of the constitutionality of the contested provision
19. Paragraph 63 (1) of the Act on Private International Law regulates the conditions for the recognition of a foreign adoption decision, provided that, at the time of adoption, one of the adopters or adopted was a national citizen of the Czech Republic. The proposal goes against that part of that provision, which, as one of the conditions of recognition of a foreign adoption decision, provides for the admissibility of adoption under the substantive legal provisions of Czech law. It is therefore only possible to recognise a foreign decision that could be given by the Czech court if it applied § 794 et seq. of the Civil Code. In particular, Article 800 of the Civil Code is relevant from the point of view of the matter from which the proposal under examination came, according to which a spouse or one of the spouses may become the master, and, exceptionally, another person may adopt it.
20. It is clear from the fact that the Regional Court has submitted to the Constitutional Court a proposal to repeal part of the Act on Private International Law, not the Civil Code, that - and the appellant expressly admits this - it does not see inconstitutionality in the very absence of the adoption of a child (jointly) registered partners. The substance of the proposal under consideration is therefore the consideration that constitutional order is contrary (except for the reservation of public order and the exclusive competence of the courts of the Czech Republic) to insist on respect for its own rules for the acquisition and decision on the recognition of a foreign decision, where a citizen of the Czech Republic was the receiver. Such an opinion is not shared by the Constitutional Court.
21. The Czech Republic is a sovereign state (Article 1 (1) of the Constitution), the source of which is the people who exercise it through the authorities of power legislative, executive and judicial (Article 2 (1) of the Constitution) or directly (Article 2 (2) of the Constitution). The exercise of jurisdiction in relation to events and persons in their sovereign territory [see International Court of Justice judgment of 3 March 2012 in the case of Jurisdiction Immunities (Germany v Italy), paragraph 57] is one of the defining features and essential manifestations of State sovereignty. There are exceptions from this jurisdiction which, however, typically have their origin in the sovereignty of another State or, in principle, sovereign equality of states.
22. It is true that a number of activities in the external world have a certain cross-border, international element, to which the Czech Republic has decided to respond by international treaties and by national law, inter alia, by allowing or ordering Czech courts to apply under certain circumstances the law of a foreign State, or even by allowing it even to recognise a decision of a foreign State and thereby to give it the same effect on its territory as if it were a decision issued by the Czech public authorities.
23. Whether the Czech Republic allows recognition of a decision of a foreign State at all, under which conditions and in how many factors depend. From a formal point of view, the nature of the rights and obligations decided upon by that act, the nationality of the persons concerned or the State in which the act was issued may play a role. In material terms, these criteria may have their origin, among others, in the sense that the State attaches importance to certain rights and obligations, possibly in the cultural and legal proximity of individual states or in the possibility of negotiating reciprocal conditions with them. As a result, some foreign decisions are recognised automatically, others are subject to special recognition procedures and some cannot be recognised at all. Even decisions whose recognition is granted in a type-approved manner may, unless otherwise agreed, be subject to certain requirements for recognition, such as compliance with the Czech public policy or, as is the case at present, compliance with the "substantive provisions of Czech law '(which may often be consistent with the requirement of compliance with the public policy).
24. The condition resulting from the contested provision, that is to say compliance with the substantive provisions of Czech law, is in essence a compromise solution, which allows the national effects of the foreign decision concerning Czech citizens to be recognised, but the Czech legislature has decided to keep the floor on who, and under what conditions, in the absence of a specific international agreement in the Czech Republic can be regarded as an observer. This is nothing more than a typical manifestation of the sovereignty of the Czech Republic in its own territory in the form of the recognition of the primacy of foreign national law over Czech law. The constitutional order contains nothing to restrict the legislator in this regard. In particular, by decision of the national authorities of foreign states, it does not admit any special position in that direction that it would order them to recognise the same effects as if they were decisions of the Czech authorities, although such decisions could not even be taken in the Czech Republic. Such a significant limitation of the legislator's own in favour of a foreign legislator would have to be made explicitly and unequivocally in constitutional order.
25. The Constitutional Court recalls that already in the sp. zn. In the finding sp. zn. Pl. ÚS 7 / 15 of 14.6.2016 (N 110 / 81 SbNU 729; 234 / 2016 Coll.) added that there is no fundamental right to the adoption of a child and a negative decision on adoption cannot be infringed either the right to family life. As the Constitutional Court further stated, it is clear from the legal regulation that the legislature prefers a marital relationship on the issue of adoption, if it states that spouses, or one of the spouses, may become teachers, exceptionally another, which the Constitutional Court has described as constitutionally conformal and appropriate to the international obligations of the Czech Republic. At this conclusion, the Constitutional Court persists, while reiterating that the contested regulation does not impose higher requirements on the recognition of foreign decisions than are imposed on the adoption itself under Czech law.
26. Therefore, it is not appropriate for the appellant's argument to recognise, almost at all costs, the "factual" reality of life. The possibility or impossibility of recognising the "factual" reality of life (by allowing the adoption or recognition of the adoption) results directly from the regulation in the Civil Code. Paragraph 800 of the Civil Code does not allow the joint adoption of registered partners, whatever the factual reality of their lives (and even the appellant finds that to be constitutional). Now the contested provision does not change anything in this regard, it merely states that the same rules apply to the recognition of foreign adoption, that is to say that the "factual reality" of life in a foreign state is not of any particular importance compared to the same reality in the Czech Republic. The Constitutional Court does not see why the actual reality of life abroad would have to be of greater value than the actual reality of life in the Czech Republic.
27. The purpose and sole relevant consequence of the current contested regulation is that in certain cases there is a lack of recognition of the reality of "legal" within the meaning of the reality of the national law of another State. However, as has already been said, constitutional order does not confer any special privileges on the territory of the Czech Republic, unless otherwise agreed by contract. If the legislator is allowed to lay down rules for adoption, it may, in principle, also prevent such rules from being "circumvented" through foreign legislation, i.e. by the acquisition of Czech citizens or Czech citizens in another state (not only circumvented by the purpose, but also by, for example, because potential adopters live abroad for some time).
28. At the same time, it should be stressed that, although the contested provision precludes the recognition of a foreign adoption decision, that is to say that such a decision should be granted as if it were a decision of the Czech public authority, this does not mean that the State would not be in the life of children or registered partners who, under the law of a foreign State, have adopted them in any way actively intervened (cf. paragraph 35 of the Constitutional Court's decision sp. pl. After all, the state does not interfere with the lives of a number of families that visit the Czech Republic without their members having their relations with the Czech authorities in any way. In other words, in some cases, the contested provision prevents the "transfer" of the reality of another State's national law into the reality of Czech law, but that does not mean that this reality is not reflected in everyday life. The proposal of the Regional Court states, moreover, that children whose adoption in the case from which the proposal under examination has come has already had thirteen years and are regularly visiting the Czech Republic on Christmas, Easter and during summer leave. Neither the application nor the attached file of the Regional Court shows that any problems arising from the recognition in the Czech Republic of the decision of the New Jersey Court of Adoption have occurred in all this time. If there are possible future consequences of non-recognition, it can be seen from the regional court's file that these are, in general, hypothetical economic concerns.
29. The Constitutional Court is aware that the European Court of Human Rights (according to which, under Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights (according to which, under Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms, de facto relations between persons who are long-term and permanent without formally being related or married or formally recognised by the State) also considers that, in some cases, actual family life has also been legally recognised (see, for example, the judgment of the Grand Chamber in Case X and Others against Austria of 19 February 2013 No 19010 / 07, § 145). At the same time, however, the Constitutional Court notes that the European Court of Human Rights has not yet found that the failure to recognise a foreign decision on the joint adoption of registered partners is contrary to the Convention on the Protection of Human Rights and Fundamental Freedoms.
30. However, the issue of recognition was dealt with by the European Court of Human Rights in a number of cases, but the violation of the Convention on the Protection of Human Rights and Fundamental Freedoms was found only in cases with substantially different legal and factual bases. For example, in the case of Wagner and J. M. W. L. v Luxembourg (judgment of 28.6.2007 No 76240 / 01), although he found infringement of Article 8 and 14 of the Convention on the Protection of Human Rights and Fundamental Freedoms not to recognise a decision to adopt an adoption in a foreign State, it was a case of adoption by one person (which the European Court of Human Rights considered to be important from the point of view of a pan-European consensus on the acceptance of this type of adoption), in a situation where the Luxembourg courts have changed their practice without justification. In Mennesson v France (judgment of 26 June 2014 No 65192 / 11) and Labassee v France (judgment of 26 June 2014 No 65941 / 11), married couples who acquired children by means of surrogacy in another State, and the European Court of Human Rights based its conclusion on an infringement of the Convention for the Protection of Human Rights and Fundamental Freedoms on the fact that France did not recognise a relationship between children and a biological parent. Again, these are not cases whose conclusions could be applicable to the present case.
31. The European Court of Human Rights, therefore, in relation to the recognition of the foreign decision to adopt it, has so far dealt with certain specific cases in which circumstances have arisen which, in its view, have led to a breach of the rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms. After all, this corresponds to his approach to the acquisition as such, as he consistently states that there is no general right to become a parent or to conceive a child, and the right to become a parent cannot be inferred from either Article 8 or Article 12 of the Convention on the Protection of Human Rights and Fundamental Freedoms. Nor can any general right be derived from them to become an observer and therefore no obligation on the State to allow access to the adoption (see, for example, the judgment in Pini and others against Romania of 22 June 2004 No 78028 / 01 and 78030 / 01, § 140).
32. The Constitutional Court cannot rule out that the view of the European Court of Human Rights will be changed or developed in the future. However, the Constitutional Court has already taken the view that the change in the institutions affecting the family, marriage or relations between adults and children is better than the European judge predetermined by the national legislator. It does not intend to change anything on this position even now, while it does not intend to advance the evolution of the European Court of Human Rights case-law. The legislator is not only better predestined than the European Court of Human Rights, but also the Constitutional Court itself to address issues such as the basic things of man as a biological species, his life and his relationships, namely family, parenthood and marriage.
33. The same applies to matters with an international element. If, in accordance with the finding of the Constitutional Court, sp. zn. Pl. ÚS 10 / 15, a possible change in the institutes which affect the family, marriage and relationships between adults and children is predetermined by the "national legislator," the legislator of the Czech Republic and not the legislator of a foreign state are meant to do so in the territory and in persons under the jurisdiction of the Czech Republic. Each country has its own history, culture and pace and direction of social development. Each state therefore also has its own legal order, which reflects these uniqueness.
34. The rules on the adoption and recognition of foreign decision-making are regularly the subject of international agreements in terms of the life of adults and children, both of which are so-called harmonization contracts (with the aim of unifying legislation at a certain desirable level as far as possible) and of coordination and therefore of state institutions' procedures for the acquisition of children abroad. The Act on Private International Law also remembers this (§ 2). In this context, in particular, the Czech Republic, ratified by the Convention on the Protection of Children and Cooperation in International Adoption, published by the Ministry of Foreign Affairs under No 43 / 2000 Coll. (see above all Article 23 et seq.), which, however, according to its Article 2, also applies only to the further specified acquisition of a spouse or one person (which, after all, is fully in accordance with the same ratified European Convention on the Adoption of Children, published by the Ministry of Foreign Affairs under No 132 / 2000 Coll., under which "the law will authorise the acquisition of a child only in cases where it is either two persons living in a matrimonial union, whether they acquire simultaneously or subsequently, or a single person '. Of course, the adoption of an international element that takes place outside the international legal contractual framework does not need to enjoy the same legal protection as the adoption carried out under the rules of these agreements.
35. In the context of international agreements, the appellant repeatedly refers to Article 3 (1) of the Convention on the Rights of the Child and contends that the contested court's rules do not allow the examination and taking into account the best interests of the child in the procedure for the recognition of the foreign adoption decision. It can be noted that the appellant's argument in this respect is intrinsically somewhat contradictory, as the appellant - as has already been said - also "fully respects" the regulation adopted in Paragraph 800 of the Civil Code, which, in the words of the appellant, is "the result of a social discussion on the joint adoption of minors by a couple of same-sex persons or an unmarried mixed couple." In the spirit of this argument, however, Section 800 of the Civil Code "limits' the court in its ability to take into account the best interest of the child in the adoption decision in exactly the same way as the contested regulation now does in its decision to recognise the foreign adoption decision.
36. In particular, however, the Constitutional Court dealt with practically the same argument already in the above-mentioned finding of sp. zn. In its conclusion that this impact of legislation does not cause its inconstitutionality, the Constitutional Court or, in the present case, does not find any reason to change anything. It is sufficient to add the following.
37. Article 3 (1) The Convention on the Rights of the Child must be a leading consideration for the child in any child-related activity (a similar requirement directly in relation to the adoption decision is set out in Article 21 of the Convention on the Rights of the Child). Of course, the interest of the child does not have to be a single or always point of view and, in every situation, decisive. Thus, the activities of the State authorities are not automatically contrary to the provision in question simply because its outcome had to ultimately give way to a different value or because of disagreement on what the best interest is. Article 3 (1) It is not possible to interpret the Convention on the Rights of the Child in such a way that it should lead to the exclusive power of the courts to rule on all matters by overriding the best interests of the child, without the legislator being able to set certain limits for such decisions. After all, it cannot be ignored that the appeal of Article 3 (1) of the Convention on the Rights of the Child is expressly directed at legislative bodies, which do not merely give advice on matters relating to children. Nor can it be overlooked that Article 21 of the Convention on the Rights of the Child expressly states that acquisition must be decided in accordance with the law. The legislature may continue to lay down generally binding rules in matters relating to children, including those from which the court cannot derogate. However, when adopting them, children must remember the best interest. It must also be borne in mind by a court which, within the limits of the law, decides an individual case, thus fully fulfilling the requirements of Article 36 (1) of the Charter.
Conclusion
38. For those reasons, the Constitutional Court rejected the application under Paragraph 70 (2) of the Constitutional Court Act.
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, the Judges Pavel Šámal, Kateřina Šimáková and Vojtěch Šiměl took a different position.
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Regulation Information
| Citation | The Constitutional Court found No 47 / 2021 Coll., on the application for annulment of Section 63 paragraph 1 of Act No. 91 / 2012 Coll., on Private International Law |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 09.02.2021 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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