Found at the Constitutional Court of the Czech Republic No. 72 / 1995 Coll.

1. provision of § 46 of the Family Act No. 94 / 1963 Coll., as amended,

2. provision § 19 paragraph 1 (a) No 1 of the Act of the Czech National Council No. 114 / 1988 Coll., on the jurisdiction of the Czech Socialist Republic institutions in social security, as amended,

3. provision § 15 of the Decree of the Ministry of Labour and Social Affairs of the Czech Republic No. 182 / 1991 Coll., implementing the Act on Social Security and the Act of the Czech National Council on the competence of the institutions of the Czech Republic in social security, as amended.

The complainant Zdeněk Novotný lodged on 16.2.1994 The Constitutional Court of the Czech Republic had a constitutional complaint against the order of the Regional Court in Brno of 29 November 1993 rejecting its appeal to the judgment of the Municipal Court in Brno of 2 August 1993, and, together with that, it also filed a motion for annulment of the above-mentioned provisions of the law to the extent cited. On this basis, the proceedings for a constitutional complaint were suspended by the Chamber and the application for annulment of the provisions of both laws and the implementing regulation was referred to the full court of the Constitutional Court pursuant to § 78 (1) of Act No 182 / 1993 Coll., on the Constitutional Court.

In order to justify the proposal, the complainant stated that a decision on a provisional measure by the Office of the City of Brno - Černovice in 1991 had been taken to place his son in constitutional care. The complainant appealed against the interim measure, the appeal body - Brno City Office, Social Affairs Department, did not comply with the appeal. Also, the criminal court, which, in connection with those decisions, decided in 1993 to breach the obligation of a father to pay medical fees for the duration of his son's stay in constitutional care, did not take into account the complainant's objections that the decisions infringed both the rights of the complainant and his child, since the Charter of Fundamental Rights and Freedoms in Article 32 (4) provides that parents' rights may be restricted and children separated from their parents against their will by a decision of the court by law. Similar provisions include Article 9 (1) of the Convention on the Rights of the Child. According to the complainant, the provisions cited at the time of the decision within the meaning of § 2 of the then applicable Constitutional Law No. 23 / 1991 Coll. had priority over the law, i.e. also over the provision of § 46 of the Family Act No. 94 / 1963 Coll. and § 19 (1) (a) § 1 of the ČNR Act No. 114 / 1988 Coll. and § 15 of the Order of the Ministry of Labour and Social Affairs of the Czech Republic No. 182 / 1991 Coll. States Parties to the Convention are to ensure that the child cannot be separated from their parents against their will, unless the competent authorities, on the basis of a judicial decision and in accordance with applicable law and in the relevant proceedings, determine that such separation is in the interests of the child.

The Constitutional Court found from the reasoning of the criminal judgment of the Municipal Court in Brno in Case No 4 T 113 / 93 that even though the Municipal Court in Brno did not do so with explicit reference to the provisions of § 46 of Law No 94 / 1963 Coll., the General Court followed its legal considerations, in particular as regards the statement on the fault of the complainant, the content of that law. From this point of view, the Constitutional Court concluded that the proposal to abolish part of Act No. 94 / 1963 Coll., as amended, as well as other parts of the Act of the Czech National Council No. 114 / 1988 Coll. and the Order of the Ministry of Labour and Social Affairs No. 182 / 1991 Coll., are in close connection with the circumstances arising from the complainant's constitutional complaint and that therefore the formal conditions for the examination of the application for annulment of the Act are fulfilled (§ 74 of Act No. 182 / 1993 Coll.).

The proposal was sent to a party on 1 November 1994, i.e. to the Chamber of Deputies of the Parliament of the Czech Republic, with a request for observations within the meaning of Section 69 of the Law on the Constitutional Court. This statement was sent to the Constitutional Court by letter No 3866 / 94 of 17.11.1994. In the introduction, the statement shall contain a general statement on the exercise of parental rights and obligations subject to social control. As regards the contradiction between the contested provisions of that legislation and the cited provisions of Article 32 (4) of the Charter of Fundamental Rights and of Article 9 (1) of the Convention on the Rights of the Child, it is noted in the statement that the contested three legislation was not found to be in conformity with the Constitution of the Czech Republic and other legislation and that it is necessary to continue to form part of the legal order. This suggested that the Constitutional Court should not comply with the complainant's proposal.

The Constitutional Court, on the basis of the proposal put forward, had primarily to concentrate on comparing the content of the contested provisions proposed for annulment, in particular Article 46 of Act No. 94 / 1963 Coll. (since the provisions of Article 19 of Law No. 114 / 1988 Coll. and Article 15 of Decree No. 182 / 1991 Coll.), with the provisions of Article 32 (4) of the Charter of Fundamental Rights and Freedoms also derive from its legislation. The restriction of parental rights and the separation of children from parents can only be done by decision of the court (and by law), according to the explicit wording of the Charter of Fundamental Rights and Freedoms, which is part of the constitutional order of the Czech Republic. The text of Article 32 (4) of this Charter does not allow any doubt: "Parents' rights may be restricted and underage children may be separated from parents against their will only by a decision of the court under the law." Similarly, the Convention on the Rights of the Child, which the State is obliged to provide nationally, specifies the protection of the child.

Therefore, if the Charter of Fundamental Rights and Freedoms in the cited article provides that minors may be separated from their parents against their will only by a decision of the court under the law, then the provision of the Law on Family (§ 46 of Act No. 94 / 1963 Coll.), as well as the provision of the Law on the jurisdiction of the Czech Socialist Republic institutions in social security (§ 19 of Act No. 114 / 1988 Coll.), that the District National Committee (now the District Office) is required, in urgent cases, to take a preliminary decision on the Constitutional Court and to abolish it.

The Constitutional Court agreed with the opinion expressed by the Chamber of Deputies of the Czech Republic, in the sense that if the child lacks education in his own family environment, he has a legal right to have his / her state provide him / her with education in an environment replacing his / her own family, that is to say, constitutional education, if it is not possible to provide alternative family care (§ 46 of Act No 94 / 1963 Coll.), so that it is not only the right of these authorities to take the necessary measures which require an interest in protecting the rights of the minor, but also their legal obligation.

However, the Constitutional Court could not agree with the claim that the scope of the powers of state bodies and their powers, for example in § 46 of Act No. 94 / 1963 Coll., is in line with the relevant standards of international law, since, as mentioned above, it concluded that this particular provision is contrary to the constitutional law of the Czech Republic. Therefore, it could not agree with the further assertion that the court could decide on the immediate placement of the child in the care of the parent, only after the competent administrative authority had decided on such placement by its interim measures.

The above grounds, which testify to the annulment of the contested provisions of the two laws cited above, apply to the same extent also to the repeal of the provisions of the implementing regulation, i.e. Section 15 of Decree of the Ministry of Labour and Social Affairs of the Czech Republic No. 182 / 1991 Coll.

The Constitutional Court, aware of the need for urgent action to be taken without delay in the interests of the child, postponed the effectiveness of the finding to 1 October 1995 in order to implement the necessary organisational or legislative measures to ensure that the protection of the interests of the child is carried out in accordance with the Charter of Fundamental Rights and Freedoms, which is part of the constitutional order of the Czech Republic, as well as the International Convention on the Rights of the Child to which the Czech Republic is bound.