The Constitutional Court found No 476 / 2004 Coll.
The Constitutional Court found of 30 June 2004 on the application for annulment of § 5 (1) last sentence, § 8 (4) and § 41 (2) of Act No. 109 / 2002 Coll., on the performance of constitutional education or protective education in educational establishments and on preventive educational care in educational establishments and on the amendment of other laws
Valid
The Constitutional Tribunal found
Text versions:
26.08.2004
476
FIND
The Constitutional Court
On behalf of the Czech Republic
On 30 June 2004, the Constitutional Court decided in plenary on the proposal of the President of the Republic for annulment of § 5 (1) last sentence, § 8 (4) and § 41 (2) of Act No. 109 / 2002 Coll., on the performance of constitutional education or protective education in educational establishments and on preventive educational care in educational establishments and on the amendment of other laws,
as follows:
Paragraph 5 (1) of the last sentence, as amended by: "In specially justified cases, where the child's interest so requires, places the child outside the establishment in the contractual family. ',
Paragraph 8 (4), as amended by: "The Diagnostic Institute shall contract cooperation with the contractual families. Through these contractual families, the tasks of the diagnostic institute are ensured especially in children whose collective stay is not appropriate. The selection and preparation of contractual families, the method of cooperation and control shall be determined by the diagnostic institute in accordance with the Decree of the Ministry of Labour and Social Affairs. ',
and Article 41 (2), as amended by: "The Ministry of Labour and Social Affairs provides by decree details of the selection and preparation of contract families, details of the method of cooperation and control of these contractual families with a diagnostic constitution." Act No. 109 / 2002 Coll., on the performance of constitutional education or protective education in educational establishments and on preventive educational care in educational establishments and on the amendment of other laws, is deleted from the date of publication of this finding in the Collection of Laws of the Czech Republic.
Reasons
The President of the Republic of Václav Havel submitted on 5 September 2002, pursuant to Article 87 (1) (a) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and pursuant to Article 64 (1) (a) of Act No 182 / 1993 Coll., on the Constitutional Court, on the abolition of the last sentence of § 5 (1), Article 8 (4) and Article 41 (2) of the Act No 109 / 2002 Coll., on the performance of constitutional education or protective education in educational establishments and on preventive educational care in educational establishments and on the amendment of other laws, on the discrepancy with Articles 1, Article 4 and Article 79 (3) of the Constitution and Article 4 (2) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to).
The application for annulment of the above provisions was made by the President of the Republic (hereinafter also "the appellant ') on the basis of concerns about the possibility of abuse of the said legislation against the child for the following reasons:
1. Paragraph 5 (1) of Act No. 109 / 2002 Coll. ("the Act") provides for the possibility for a diagnostic institution to place a child in a contractual family, even if the institution has taken responsibility for all care of the child under the decision of the court. The law does not define a contract family, it does not contain an adjustment to the rights and obligations of the child and his biological parents, including the extent of liability of the contract family. The Diagnostic Institute itself selects the family and concludes a contract to raise the child. At the same time, the court does not agree to this change in the child's upbringing. The placement of a child in a contractual family under a contract between a diagnostic institute and a contractual family without sufficient and complete legal regulation, including judicial control, shall be considered by the applicant as an intervention in the protection of the fundamental rights and freedoms of the child within the meaning of Article 4 of the Constitution and Article 32 (1) and (4) of the Charter.
2. The contested law introduces a new institute of the contractual family into the law of the Czech Republic without further specifying its content and setting out the rights and obligations of members of the contract family and child, as well as relations between the contractual family, the diagnostic institute and legal representatives of the child. It is a very vague concept, its content cannot be fulfilled by ordinary interpretative procedures. Nor does the requirement of certainty satisfy the conditions under which a child may be placed in the contractual family. Terms such as "in specially justified cases' and" if the child's interest so requires', albeit partly specific by the term "children for whom a collective stay is not appropriate ', are so vague that, even at the best of will, they cannot be described as legal limits on the discretion of a diagnostic institute.
3. According to Section 8 (4) of the Act, the contract family is to provide the environment (usually for 8 weeks) and to provide the tasks of the diagnostic institute provided for in Section 5 (2) of the Act, i.e. the tasks of diagnostic, educational, therapeutic, educational and social. The law does not lay down requirements for members of the contract family, as is the case, for example, for educational and non-educational staff. The definition of a contractual family as the law refers to it is completely vague, contrary to the principle of legal certainty and thus to the principles of the rule of law. It is thus contrary to Article 1 of the Constitution, which states that the Czech Republic is a democratic rule of law based on respect for the rights of man and citizen.
4. According to Section 41 (2) of the Act, the Ministry of Labour and Social Affairs is required by the Decree to determine the nature of the contract between the diagnostic institute and the contract family, its content, the extent of rights and obligations and, where appropriate, the consequences of both contracting parties and the child and his own parents. The intended decree would therefore necessarily have to contain authorisations and procedures which, however, undeniably require legal regulation. Such authorisation is directly contrary to Article 79 (3) of the Constitution, according to which ministries may legislate under and within the limits of the law if they are empowered to do so. The Constitution allows the legislator to empower the executive authority to legislate for the implementation of the law. The implementing act must comply with the law to which it relates and be issued on its basis and within its limits. It is therefore a prerequisite that the law contains a basic framework for a substatutory regulation.
5. The rules governing the placement of children in the contractual family are contrary to Article 4 (2) of the Charter, which provides that the limits of fundamental rights and freedoms may be governed by law only under the conditions laid down in the Charter.
In accordance with Article 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court '), the Constitutional Court requested the observations of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as parties to the proceedings.
On behalf of the Chamber of Deputies of the Parliament of the Czech Republic, its President PhDr. Lubomír Zaoralek submitted his observations. He recaptured the substance of the proposal and stated that the last sentence of Paragraph 5 (1) of the contested law provides for the possibility for a diagnostic institution to place a child in a contractual family. The other contested provisions of the law further implement this new institute. Act No. 109 / 2002 Coll. was approved after a properly implemented normative process, signed by the relevant constitutional officials and was declared in the Collection of Laws. At the time the designated law was adopted, the legislature acted in the belief that the law was in accordance with the Constitution, the constitutional order and the legal order of the Czech Republic. It is up to the Constitutional Court to examine the constitutionality of this Act and to take a decision in connection with the application for annulment of the provisions listed.
On behalf of the Senate of the Parliament of the Czech Republic, his President JUDr. Petr Pithart submitted his observations. He stressed that all the provisions of the law proposed for annulment concern the Institute of the Contract Family. In view of the majority will of the Senate, he raised the following arguments in favour of the proposal submitted by the President of the Republic:
The Charter of Fundamental Rights and Freedoms in the second sentence of Article 32 (4) expressly states that parents' rights may be restricted and minor children may be separated from their parents against their will only by a decision of the court under the law. In accordance with this principle, the court directs the constitutional education of a child (§ 46 (1) of the Family Act), the court imposes protective education on a minor (§ 84 (1) of the Criminal Act), the court also orders the transfer of a child to the care of another person, if a minor child is without any care or if his life or favourable development is seriously threatened or disturbed (§ 76a (1) of the Civil Code). The decision of the court is also needed to entrust the child to foster care (§ 45a (1) of the Family Act) and to adopt the child (§ 63 (2) of the Family Act). The suspension or waiver of parental responsibility also requires a judgment of the court (Sections 42 and 44 of the Family Act). On the other hand, the provisions of the law challenged by the President of the Republic allow a diagnostic institution to place a child in a contractual family on the basis of a non-specified contract and without a decision of the court, thereby changing the court's decision on the regulation of constitutional education or the imposition of protective education.
In this context, it referred to the finding of the Constitutional Court published under No 72 / 1995 Coll. [Findings sp. zn. Pl. ÚS 20 / 94, Collection of finds and orders of the Constitutional Court (hereinafter referred to as "the Reports of the Judgments'), Volume 3, Found No 18], by which the Constitutional Court annulled the provisions of § 46 of the Law on the Family in the then existing version and § 19 (1) (a) (1) of Law 114 / 1988 Coll., on the competence of the authorities of the Czech Socialist Republic in social security, enabling the District Office to decide, in urgent cases, on the immediate placement of a child in replacement education of parents for a period before the court.
In accordance with Article 42 (3) of the Law on the Constitutional Court, the application was also sent to the Ombudsman. According to its extensive observations, the provisions of Sections 8 (4) and 41 (2) of the Act are contrary to the provisions of Articles 1 and 79 (3) of the Constitution and Articles 4 (1) and (2), 7 (1), 10 (2) and 32 of the Charter, as they constitute an inadmissible delegation of standards to the executive body (Ministry of Labour and Social Affairs) and allow for the adaptation of the limits of fundamental rights and freedoms by the statutory legal standard.
Article 79 (3) The Constitution empowers ministries to legislate only under the law and within its limits. The restriction of the standardisation delegation is one of the traditional and key aspects of the division of power and of the braking system and of mutual balancing. Therefore, the constitutional order of the Czech Republic allows the legislator to authorise the executive authorities under certain conditions to legislate. The authority must be explicit and the content of the substatutory provision must be in accordance with the law it implements. However, if Parliament resigns to the limits and blantly empowers the executive to say what is right, what are the rights and obligations of persons, or what are the powers and duties of administrative authorities, then it violates the principle of a limited delegation of standards, and thus also violates the principles of division of power.
In this context, the Ombudsman recalled that the Constitutional Court had also dealt with these issues and referred in particular to the finding of Pl. ÚS 35 / 95, published under No 206 / 1996 Coll. and published in the ECR, Volume 5, Found No 64.
In the same sense, the Constitutional Court also expressed its views on the questions of the delegation of legislative powers in the decision-making procedure in the decision-making procedure in the decision-making procedure in the decision-making procedure in the decision-making procedure, and on the decision-making procedure in the decision-making procedure in the decision-making procedure in the decision-making procedure in the decision-making procedure in the decision-making procedure in the decision-making procedure in the decision-making procedure.
The law introduces the term "contract family" into the Czech legal order in the provisions which are proposed to be repealed without further delineating it. The limit laid down by the legislator for the Ministerial Decree and for the decision-making of diagnostic institutes on the placement of a child in the contract family is only that it will be a particularly justified case and that this will require the interest of the child. In another place, the law shows demonstratively that children may be placed in contract families for whom a collective stay is not appropriate. More provisions on the Institute of the Contract Family do not include the Act and empowers the Ministry to provide by decree "details of the selection and preparation of the Contract Families and details of the cooperation and control of these Families."
In view of the very small regulation in the law, it is clear that rather than laying down details, the decree would have to modify the essential elements of this completely new institute. The legislature thus resigned to the purpose and purpose of childcare in the contract family (whether temporary, bridging or long-term care, even with a possible future adoption perspective). The "contract 'regime for placing a child in a contract family is not defined, its essential requirements, the fundamental rights and obligations of participants are not defined, the concept of the contract family is not defined, and it is not defined who the contract family cannot be. The obligations of members of the contract family are not specified and their responsibilities are not defined. The Act does not provide any qualification conditions for members of contract families, for example, does not require their mental fitness to be detected by psychological examination, as is the case with educational staff of the establishment (cf. Sections 18 and 19 of the Act), or to undergo the necessary preparation. The rights and obligations of a child placed in such a contractual family are not defined. There is no regulation of relations between the contractual family, the child and its legal representatives (parents). The scope, amount and method of reimbursement of the costs of the care in the contract family are not adjusted. The Ministry's jurisdiction over the contract families is not regulated, penalties are not imposed for breach of obligations in the contract family, supervision of compliance is lacking, etc. According to the Ombudsman, it is therefore clear from that list that the rights and obligations of the persons involved in the Institute and the powers of the Administration would have to be laid down by a Ministerial Order in order for the Institute to become operational at all.
The Institute of the Contract Family is established in the context of the performance of constitutional education or protective education. Within this framework, the rights of parents and children separated from each other by judicial decisions are to be exercised, often against their will. The decision of the diagnostic institute on the placing of the child in the contractual family is undoubtedly a further interference in the right to respect for the family and private lives of the child and his family (Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms). However, the provisions of Articles 7 (1), 10 (2) and 32 of the Charter are reserved for legal interference in fundamental rights and freedoms. The general principle set out in Article 4 (1) of the Charter may also be applied, according to which the obligation may be imposed only on the basis of the law and within its limits and only with respect to fundamental rights and freedoms. Therefore, it cannot be allowed that the rights and obligations of persons participating in the Institute are defined by rules other than the law. Otherwise, the sphere of fundamental rights and freedoms would be under the authority of an executive who is not entitled to such powers (cf. It cannot also be allowed that the substatutory legislation defines cases, limits and ways in which State authority may be exercised against persons involved in the institute of the contractual family (Article 2 (3) of the Constitution).
The Ombudsman pointed out that the provisions of the law governing these issues conferred by the Ministerial Order are contrary to Articles 1 and 79 (3) of the Constitution and to Articles 4 (1) and (2), 7 (1), 10 (2) and 32 of the Charter and should therefore be repealed by the Constitutional Court.
According to the Ombudsman, the provisions of § 5 (1), last sentence, and § 8 (4) of the Act are contrary to Article 1 of the Constitution, according to which the Czech Republic is a democratic state because it is indefinite. He added that, according to the constant case law of the Constitutional Court, one of the principles of the rule of law is the principle of legal certainty and hence the requirement for clarity and certainty of the law. In this context, it referred to the finding of sp. zn.
The indefinite definition of the Institute of the Contract Family is also reflected in the provision of Section 8 (4) of the Act under which the tasks of the Diagnostic Institute are "ensured through the Contract Families." It is difficult to imagine how the contract family would be able to provide the tasks of diagnostic, educational, therapeutic, educational and social, organisational, related to the placing of children in an establishment, and finally the task of coordinating (cf. Section 5 (2) of the Act). These are tasks of a very professional nature, provided in diagnostic institutes by a team of experts who are given a number of powers to perform these tasks and are also provided with material background. The conditions under which a child can be placed in a contractual family ("in particular justified cases, if the child's interest so requires') are worded too indefinitely. The intensity of this uncertainty is so high that it excludes the possibility of determining the normative content of the provisions in question by using the usual interpretation procedures.
According to the Ombudsman's conclusion, the Constitutional Court should repeal the provisions of the law relating to the Institute of the Contract Family, as they are contrary to Article 1 of the Constitution because of their uncertainty.
The introduction of the Institute of the Contract Family into the Law on the Enforcement of Constitutional or Protection Education is, according to the Ombudsman, a foreign element that is outside the meaning and purpose of the Act, i.e. the regulation of the performance of constitutional or protective education in educational establishments. Proposals of the amendment by which the Institute of the Contract Family was incorporated into the text of the Act seem inspired by the Slovak regulation contained in Act No. 195 / 1998 Z. z., on social assistance. According to Section 26 of this Act, a children's home can provide care in families for the professional performance of replacement care (so-called professional replacement family), which provide care and education for children in their own family environment, outside a children's home. Contrary to the Czech regulations of the so-called contract family, it is a care of the children's home provided by professionals - employees of the children's home in their own family environment. A professional parent receives a salary for his work, his work is managed and controlled and has a fixed job.
According to the Ombudsman, the mandate of the Ministry of Labour and Social Affairs to issue a decree on the details of the selection and preparation of the contract families and on the details of the cooperation and control of these contract families with the diagnostic institute also raises doubts. The central body of the state administration for educational establishments is, according to the provisions of § 7 of the competent law (Act No. 2 / 1969 Coll., on the establishment of ministries and other central bodies of the state administration of the Czech Socialist Republic, as amended) The Ministry of Education, Youth and Sports, which is also the central administrative office for the exercise of constitutional and protective education in educational establishments (cf. Paragraph 4 (6) of the Act). It is therefore incomprehensible why the details of the organisation procedure of the diagnostic institute in the reception, placement, transfer and release of children are to be laid down by the Decree of the Ministry of Education, Youth and Sports (Section 5 (13)), while the details of the selection and preparation of contract families, the details of the cooperation and control of these contractual families with the diagnostic institute, are to be laid down by the Decree of the Ministry of Labour and Social Affairs.
In accordance with Article 42 (3) of the Law on the Constitutional Court, the expression of the Ministry of Education, Youth and Sports and of the Ministry of Labour and Social Affairs was also requested.
In principle, the Ministry of Education, Youth and Sports agrees with the conclusions of the appellant concerning the institute of the so-called "contract family," introduced in Czech law by Act No. 109 / 2002 Coll. The provisions in question were not part of the government proposal, but were supplemented by amendments when discussing the draft law cited in the Chamber of Deputies of the Parliament of the Czech Republic. Education of children and young people in "contract families" could be an appropriate form of care for children and youth, but another issue is the establishment of this educational form in the Czech legal order, which is very problematic at the time.
First, the legislation of this institute is lacking in the law. The law does not contain the definition of this concept, the definition of requirements for contract families, the definition of their rights and obligations, but also the rights and obligations of children, the relationship between the contract family and the diagnostic institute. It is therefore an indefinite concept, which is not defined by the law at all, only in Paragraph 41 (2) refers to an implementing decree which the Ministry of Labour and Social Affairs is to lay down details for the selection and preparation of contract families, details of the cooperation and control of these contractual families with a diagnostic constitution.
If the law empowers the Ministry to modify something which is not itself governed by the law, that provision is contrary to Article 79 (3) of the Constitution. In this case, it is not about the implementation of the law, but about supplementing it in the absence of the relevant legal regulation which the Decree should implement.
The contested provisions of Law No 109 / 2002 Coll. also contravene Articles 2 (2) and 4 (1) of the Charter, according to which state power can only be exercised in the cases and limits provided for by the law, in the manner provided for by the law, and obligations may be imposed only on the basis of the law and within its limits. The decree foreseen by the law would undoubtedly have to include the determination of the obligations of the contract family in relation to both the child and the diagnostic institution, but they do not have the necessary basis in the form of positive legal regulation.
There is also no provision for judicial interference in the law. In so doing, pursuant to Article 32 (4): The Charter may be limited to the rights of parents and minor children may be separated from their parents against their will only by a decision of the court under the law. Article 4 The Constitution is fundamental rights and freedoms under the protection of judicial authority. The law provides that a child would be placed in a contractual family only on the basis of a contract concluded between that family and the diagnostic institute, without any control of the court and legal basis. The general institute of contractual freedom of the participants in obligations would thus allow the parties to agree, in principle, any conditions of education in the contractual families, thereby violating the obligations of the Czech Republic also arising from international legal normative acts (see e.g. European Convention on the Enforcement of Children's Rights - Communication of the Ministry of Foreign Affairs No. 54 / 2001 Coll.).
The Ministry of Education, Youth and Sports, as part of a methodological activity, has drawn up an instruction on the placement of children with an order for constitutional education or for protection in contract families. According to Article I (2) of this instruction, until the date of issue of the Decree of the Ministry of Labour and Social Affairs within the meaning of § 41 (2) of Act No. 109 / 2002 Coll. of the Diagnostic Constitution, children with an ordered constitutional education or imposed protective education are only placed in educational establishments for the performance of constitutional education and protective education pursuant to § 5 (1) of the First Law No. 109 / 2002 Coll. This guideline will ensure that, until the situation is resolved in a level of legislation, entrustment to the contractual families will not take place.
According to the opinion of the Ministry of Labour and Social Affairs, the provisions of § 5 (1) last sentence, § 8 (4) and § 41 (2) of Act No. 109 / 2002 Coll. are contrary to the Constitution and the Charter, because they establish a diagnostic institution entitled to place a child in a contractual family. In doing so, the legal relationship between the diagnostic institute, the contractual family, the child and the legal representatives of the child are not defined by law. It is completely ignored that the decision of the court to place a child in constitutional care is being amended by agreement of several persons, without laying down legal rules for such conduct. In such a case, it shall not be excluded that the child, entrusted by the court's decision to be taken into constitutional custody, will, on the basis of the intended agreement between the Director of the Diagnostic Institute and the persons forming the contractual family, enter into a family whose environment is unsatisfactory for the child. For comparison, the Ministry recalls the adjustment of the status and responsibilities of adopters and foster parents and future adopters and foster parents. This regulation is fully a legal regulation, not a statutory regulation.
The above described unacceptable legal situation cannot be resolved by the Decree of the Ministry of Labour and Social Affairs, the issue of which is foreseen by Sections 8 (4) and 41 (2) of the Act. The intended decree would have to include the setting of obligations for members of the contract family, such as the obligation to participate in the preparation for the care of the child, the obligation to communicate certain personal data, the obligation to cooperate in carrying out the check, as well as the provision of different obligations relating to the selection of the contract family and the actual care of the child. By establishing those obligations in the Order of the Ministry of Labour and Social Affairs on the basis of the generally formulated powers of § 8 (4) and § 41 (2) of the Law, Article 4 (1) of the Charter would infringe, under which obligations may be imposed only on the basis of the law and within its limits. The provisions of the Act in question are not a necessary basis to set the limits within which the Implementing Decree is to be applied. Paragraph 5 (1), § 8 (4) and § 41 (2) of the Act do not provide for such limits.
Finally, the Ministry of Labour and Social Affairs is of the opinion that the mandate of the Ministry of Labour and Social Affairs to issue the Decree is defective from the point of view of Act No. 2 / 1969 Coll., as amended. Under Paragraph 8 (4) of the contested law, the tasks of the diagnostic institute are to be ensured through the contractual families. Act No. 2 / 1969 Coll., as amended, however, in the provision of § 7, education establishments are the responsibility of the Ministry of Education, Youth and Sports and not the Ministry of Labour and Social Affairs.
The Constitutional Court also requested the statement of the Children's Fund. The Fund does not agree with the appellant's argument that the new institute of the contractual family constitutes an intervention in the protection of the fundamental rights and freedoms of the child or that it is contrary to the principle of legal certainty and thus to the principles of the rule of law. It is not afraid that this legislation can be used to the detriment of the child to a greater extent than it is now possible to abuse the system of constitutional education (e.g. educational measures, or punishment for prohibiting a child from visiting parents). It also does not consider that closer conditions for the functioning of contract families could not be laid down by the Ministry of Labour and Social Affairs by decree, as the law allows. The fund of children at risk considers that the applicant's constitutional complaint is not justified because the legal status of the child in the contract family is not changed and remains subject to the basic principles of the constitutional education regime. Responsibility and control of the child still belong to the constitutional establishment. Nothing changes the possibility of a child having contact with his or her family.
Article 68 (2) of the Constitutional Court Act The Constitutional Court, when deciding on the annulment of laws or other legislation, shall examine the content of those provisions in the light of their compliance with the constitutional rules and shall determine whether they have been adopted and issued within the limits of the constitutional powers laid down and in a constitutional manner. It is clear from the observations of the two chambers of the Parliament of the Czech Republic, as well as from the Parliament's press and voting data sent, that Law No 109 / 2002 Coll. was adopted and issued in a constitutional manner and within the limits of the competence laid down by the Constitution.
The bill with which the Chamber of Deputies agreed on 6 December 2001 was passed on to the Senate on 19 December 2001. The Senate Plenum discussed the bill at its 13th meeting on 17 January 2002 and rejected the bill by resolution No 263. The Chamber of Deputies again voted on the bill at its 46th meeting on 5 February 2002 and approved the bill by resolution No 2016. The President of the Republic then returned the adopted law, but the Chamber of Deputies remained on the law (see Resolution 2121 of the 47th meeting of 12 March 2002).
After examining the application lodged by the President of the Republic and considering all the circumstances, the plenary of the Constitutional Court concluded that the application was justified.
All the provisions of the law proposed by the applicant are related to the institute of the contractual family, which was introduced into the law of the Czech Republic by Act No. 109 / 2002 Coll. These provisions were not part of the government bill, but were incorporated into the law on the basis of a parliamentary initiative during the negotiation of the Act by the Czech Parliament of Deputies.
The first provision of the law, the abolition of which is proposed, is the last sentence of Paragraph 5 (1), which reads: "In particularly justified cases, if the child is concerned, he places the child outside the establishment in the contractual family."
For the sake of completeness, it should be noted that Section 5 (1) of Act No 109 / 2002 Coll. defines a diagnostic institute as an establishment which takes care of children (see Sections 2 (3), (4) and (5) of the same Act) for which constitutional education or protection education has been ordered, children who have been ordered for interim measures to ensure the care of minors under Section 76a of the Civil Code. The Institute also takes care of children who are not citizens of the Czech Republic and fulfil the conditions laid down in § 2 paragraphs 2 and 3 of Act No. 359 / 1999 Coll., on Social Protection of Children, as amended.
The Diagnostic Institute also takes care of children whose placement has been requested by the persons responsible for education as a result of their behavioural disturbances (Section 7 (1) of the Act).
Based on the results of a comprehensive examination, the health status of children and the spare capacity of individual facilities, the diagnostic institute places them in children's homes, children's homes with a school or educational institutions, with the exception of children admitted to a diagnostic institution under Section 7 (1) of the Act. These are provided with preventive educational care under Section 16 of the Act.
The last sentence of Paragraph 5 (1) of the Act, the abolition of which is proposed, provides for the possibility for a diagnostic institution to place a child in a contractual family "in particular justified cases, if the child's interest so requires'. This authorisation of the diagnostic institute therefore applies to all children mentioned above, except children located under 7 (1) of the Act.
The Constitutional Court considers the placing of a child in a contractual family under a contract between a diagnostic institute and a contractual family without sufficient and complete legal regulation, including judicial control, to be an intervention in the fundamental rights and freedoms of the child within the meaning of Article 4 of the Constitution and Article 32 (1) and (4) of the Charter. Article 4 The Constitution is fundamental rights and freedoms under the protection of judicial authority. Clause 32 (1) The Charter guarantees special protection for children and adolescents, so that parents' rights may be restricted and minor children may be separated from their parents against their will only by a decision of the court under the law (Article 32 (4) of the Charter). Thus, only a court can decide to remove a child from the care of parents. Thus, in accordance with this principle, only the court directs the constitutional education of the child (§ 46 (1) of the Family Act). If so, the child goes first to a diagnostic institution, which then decides on his / her further placement in a children's home, a children's home with a school or a educational institution, as pointed out above.
Nor does the court order the transfer of a child to the care of another person, if a minor child is found without any care or if his life or favourable development is seriously threatened or disturbed (§ 76a (1) of the Civil Code). The decision of the court is also needed to entrust the child to foster care (§ 45a (1) of the Family Act) and to adopt the child (§ 63 (2) of the Family Act). The suspension, limitation or waiver of parental responsibility also requires a judgment of the court (Sections 42 and 44 of the Family Act).
The above provision cited in Section 5 (1) of the Act allows a diagnostic institute to place a child in a contractual family without a court's decision, in order to select such a family and to conclude a contract with it. This is a change in the educational environment of a child, for which the court does not decide, for which it does not give any consent. By doing so, the diagnostic institute can effectively change the court's decision on the regulation of constitutional education or the imposition of protective education.
Thus, if the law newly entrusts the diagnostic institution with the power to place the child in the contractual family, i.e. in the upbringing of a natural person other than the parent, there is significant interference in the decision-making power of the court. In fact, the contract of the diagnostic institute with the contract family changes the verdict of the court which decided on the regulation of constitutional education. Paragraph 36 of the Act even excludes the administrative rules for the decision-making of a diagnostic institute under Section 5 (1) of the Act. Thus, the procedural position of the parties in the procedure provided for in Article 5 (1) of the Law is significantly limited in comparison with the procedural position of the parties in the case where the transfer of the child to the upbringing of another natural person is decided by the court in accordance with the provisions of Section 45 of the Family Act. The child would therefore only be placed in a contractual family on the basis of a contract concluded between the selected family and the diagnostic institution without any legal basis and without judicial control.
Therefore, the placement of a child in a contract family under the contested provisions of the law can only take place on the basis of a contract without clear legal rules for such conduct. In such a case, the possibility that the child entrusted by the court's decision will be placed in constitutional care is not excluded by agreement between the Director of the Diagnostic Institute and the persons forming the contractual family in an environment which will be unsatisfactory for the child.
This legislation also infringes the obligations of the Czech Republic arising in particular from Article 9 of the Convention on the Rights of the Child (see the Communication of the Federal Ministry of Foreign Affairs No. 104 / 1991 Coll.). Pursuant to this Article, paragraph 1: "States Parties shall ensure that a child cannot be separated from his parents against their will, unless the competent authorities, by judicial decision and in accordance with applicable law and in the relevant proceedings, determine that such separation is necessary in the interests of the child. Such designation may be necessary in a particular case, for example, if the child is abused or neglected by parents or if the parents are separated and the place of residence of the child must be decided. ';
There was also a breach of obligations arising for the Czech Republic under the European Convention on the Enforcement of the Rights of Children, adopted in Strasbourg on 25 January 1996, signed on behalf of the Czech Republic on 26 April 2000 (see Notice of the Ministry of Foreign Affairs No. 54 / 2001 Coll.). The Parliament of the Czech Republic gave its assent to this Convention and the President of the Republic ratified the Convention. The Convention entered into force on 1 July 2000 on the basis of Article 21 (3) thereof. It entered into force for the Czech Republic pursuant to paragraph 4 of that Article on 1 July 2001.
When the Convention was ratified, the following declaration was made by the Czech Republic:
"The Czech Republic declares, pursuant to Article 1 (4) of the European Convention on the exercise of the rights of children, adopted in Strasbourg on 25 January 1996, that it will apply this Convention to the adoption procedure, to the procedure for the assignment of the child to foster care and to the restriction or waiver of parental responsibility, as well as to any further proceedings concerning family matters affecting the rights of the child. '
Article 1 (3) of the European Convention on the Enforcement of the Rights of Children "For the purposes of this Convention, the term" judicial proceedings relating to a child "shall mean proceedings in family matters, in particular concerning the exercise of parental responsibility, residence and right of contact with a child." According to Article 2 (a) of this Convention, the term "judicial authority 'means a court or administrative authority having equivalent powers.
Another provision of the Act, the abolition of which is proposed, is Paragraph 8 (4) of the Act, which states that: "The Diagnostic Institute contractually ensures cooperation with the contractual families. Through these contractual families, the tasks of the diagnostic institute are ensured especially in children whose collective stay is not appropriate. The selection and preparation of contract families, the method of cooperation and control shall be determined by the diagnostic institute according to the Decree of the Ministry of Labour and Social Affairs."
As has already been stated above, the law introduces into the Czech legal order the term "contractual family," which does not specify any further, and its provisions are indefinite in this respect. They are therefore in breach of Article 1 of the Constitution, according to which the Czech Republic is a democratic state. According to the constant case-law of the Constitutional Court, one of the principles of the rule of law is the principle of legal certainty and the resulting requirement for clarity and certainty of the law (see the find sp. zn. However, the indeterminity of the law in itself is not sufficient to conclude on its inconstitutionality, as is apparent from the finding of the sp. zn. The Constitutional Court stated here that "the uncertainty of one of the provisions of the law must be regarded as contradictory to the requirement of legal certainty and, therefore, the rule of law (Article 1 of the Constitution) only if the intensity of that uncertainty precludes the possibility of determining the normative content of that provision by means of the usual interpretative procedures'. The provisions of the law proposed to abolish those conditions are fulfilled. The indefinite definition of the Institute of the Contract Family is reflected significantly in the provision of Section 8 (4) of the Act under which the tasks of the Diagnostic Institute are" ensured through the Contract Families. "It is difficult to imagine how the contract family could provide the tasks of diagnostic, educational, therapeutic, educational and social, organisational, related to the placing of children in an establishment, and finally the task of coordinating (cf. § 5 (2) of the Act). This list shows that these tasks are highly professional, provided in diagnostic institutes by a team of experts who are given a number of powers to perform these tasks and are also provided with material background. The conditions under which a child can be placed in a contractual family (" in particular justified cases, if the child's interest so requires') are worded too indefinitely. The intensity of this uncertainty is so high that it excludes the possibility of determining the normative content of the provisions in question by using the usual interpretation procedures.
In the provision of Section 8 (4) and in the authorisation provision of Section 41 (2), which the Ministry of Labour and Social Affairs mandates the Ministry of Labour and Social Affairs to lay down by decree the details of the selection and preparation of the contractual families and the details of the cooperation and control of those families, the legislature for the said Ministerial Order set out only very brief and indefinite limits, covering only the following details:
- selection of contract families
- their preparation
- details of cooperation between these families and the diagnostic institute
- control of these families.
Otherwise, the law refers to the contractual family only in the last sentence of Paragraph 5 (1) (see above), where it gives the diagnostic institution the opportunity to place the child in the contractual family:
- in the case of a particular case
- if the child is interested.
The law does not contain more words about the Institute of Contract Family. In view of this piece of adjustment, it is clear that rather than the details, the Order would have to modify all the essential elements of this new institute. The legislature did not specify whether it should be temporary, bridging or long-term care, with a possible prospect of future adoption. In the law, the definition of the term "contractual family" and the definition of the requirements imposed on that family is completely lacking. The contract family is neither defined positively nor negatively, i.e. it is not defined which family, for example, the contract family cannot be. The definition of criteria and qualification assumptions that the contract family should meet and how the ability of candidates - natural persons - to ensure proper care of the contract family will be verified. It is not clear whether it will be contractual relations only with married couples or individuals, whether and how the number of children in one contract family will be limited, etc. There is no definition of the rights of persons caring for the child in the contractual family and of how the physical security of the child in that family is to be addressed. There is also no indication of the contractual relationship between the persons forming the contractual family and the diagnostic institution (subject to employment or civil law) and the type of contract that can be concluded with the diagnostic institute. The essential elements of this Treaty and the fundamental rights and obligations of its participants, including their liability, are not defined.
That list clearly shows that the rights and obligations of the persons and authorities involved in the Institute and their powers would have to be laid down by the Ministry's decree in order for the Institute to become operational at all.
This means that the provisions of Articles 8 (4) and 41 (2) of the contested law are contrary to Articles 1 and 79 (3) of the Constitution and Article 4 (1) and (2), Article 7 (1), Article 10 (2) and Article 32 of the Charter, as they constitute an inadmissible delegation of standards to the executive body (Ministry of Labour and Social Affairs) and allow for the adaptation of the limits of fundamental rights and freedoms by a statutory legal standard.
Article 79 (3) The Constitution empowers ministries to legislate only under the law and within its limits. The contested provisions of the law are contrary to this article of the Constitution, because the Ministry is empowered to modify something for which the law itself does not impose any limits which it itself does not regulate. It would therefore not be a matter of implementing the law, but of supplementing it, since the implementing act would have to be precisely defined by the Institute of the Contract Family. Therefore, the relevant legal regulation which the Ministerial Decree should implement is lacking. The law does not, by its concise and indeterminate nature, provide the necessary basic framework for that substatutory regulation.
In order to ensure the efficient performance of the public administration, it is appropriate to maintain the detailed arrangements for the statutory legislation which can be amended more operationally. Therefore, the constitutional order of the Czech Republic allows the legislator to authorise the executive authorities under certain conditions to legislate. However, the authority must be explicit and the content of the substatutory provision must comply with the law which it implements and must therefore be issued on its basis and within its limits. However, if Parliament resigns to the establishment of the relevant framework and authorises the executive to set out what is right, what are the rights and obligations of persons or what are the powers and duties of administrative authorities, it infringes the principle of a limited delegation of standards, thus violating the principles of division of power, as laid down, inter alia, in Article 2 (1) of the Constitution.
The restriction of the normomaking delegation is one of the traditional and key aspects of the division of power and system of brakes and mutual balances on which the constitutional order of the Czech Republic is built. The legislature in the division system of power cannot, in principle, delegate its power to another entity, entrust it to another. The envisaged implementing decree would have to specify a number of obligations for persons forming a contract family, in particular to take part in the preparation of childcare, to communicate certain personal data (possibly including health), to cooperate in carrying out the check, to submit to this check, etc.
Article 4 (1) The Charter may be imposed only by law and within its limits. The anchoring of those obligations in the Decree implementing the Ministry of Labour and Social Affairs by virtue of the powers of Sections 8 (4) and 41 (2) of the Act would therefore infringe the conditions of Article 4 (1) of the Charter.
The contested provisions of the Act are contrary to the constitutional principles of the sublegal norm defined by the Constitutional Court of the Czech Republic in particular in the findings published under No 410 / 2001 Coll. and No 96 / 2001 Coll. In them, the Constitutional Court stated that the derived standard of execution must respect the following principles:
1. the statutory act must be issued by an authorised body;
2. the substatutory law must not interfere with matters reserved for the law;
3. there must be a clear will of the legislator to adjust above the legal standard.
According to the case law of the Constitutional Court, any obligation does not need to be laid down by law, since the requirement that any obligation be laid down directly and exclusively by law would "clearly lead to absurd consequences, namely the denial of the meaning of secondary standard, as the definition of certain rights and obligations of the addressees of the standard is a conceptual part of each legal standard '(cf. Case No 410 / 2001 Coll.). However, the statutory law must always be within the limits of a law which is either expressly defined or resulting from the meaning and purpose of the law. On the basis of legal authorisation, the implementing act is to specify the matter covered by the basic features already under the law itself, but must never go beyond the law.
The contested law does not comply with the principles set out above in Articles 8 (4) and 41 (2). The definition of the concept of contract family in the law is vague. Equally uncertain are the conditions under which a child can be placed in the contractual family ("in particular justified cases, if the child's interest so requires'). The intensity of this uncertainty is so high that it excludes the possibility of determining the normative content of the provisions in question by using the usual interpretation procedures. It therefore contradicts the principle of legal certainty and the principles of the rule of law. Thus, these provisions of the law conflict with Article 1 of the Constitution, which states that the Czech Republic is a democratic rule of law based on respect for human and citizen rights.
Article 3 (1) of the Convention on the Rights of the Child "The interest of the child must be a prominent consideration in any activity involving children, whether carried out by public or private social care establishments, courts, administrative or legislative bodies. '; In the light of this provision of the Convention on the Rights of the Child, the Constitutional Court takes the view that the legislation governing the selection, preparation and control of the contractual families must pursue one fundamental objective, namely the protection of the child, in order not to suffer any harm in the care of the contractual family. All important issues relating to the protection of the interests of the child have been regulated by law up until now and there is no reason why it is for contractual families to be able to do so only by substatutory regulation.
In accordance with Article 44 (2) of the Law on the Constitutional Court, all parties to the proceedings agreed to refrain from oral proceedings. In this procedural situation, the plenary of the Constitutional Court decided outside the oral hearing and without the presence of the parties on 30 June 2004. By a finding issued pursuant to Article 70 (1) of the Law on the Constitutional Court, Article 5 (1) of the last sentence, Article 8 (4) and Article 41 (2) of Law No 109 / 2002 Coll. for a contradiction with Articles 1, 4 and 79 (3) of the Constitution and Article 4 (1) and (2), Article 7 (1), Article 10 (2) and Article 32 of the Charter, on the date of publication of this finding in the Collection of Acts.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 476 / 2004 Coll., on the application for annulment of § 5 paragraph 1 last sentence, § 8 paragraph 4 and § 41 paragraph 2 of Act No. 109 / 2002 Coll., on the performance of constitutional education or protective education in educational establishments and on preventive educational care in educational establishments and on the amendment of other laws |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 26.08.2004 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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