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HEADNOTES
As
stated above, in the constitutional complaint the petitioner claimed
violation of Art. 32 par. 1 of the Charter, under which parenthood and
the family are protected by the law, and which guarantees special
protection to children and juveniles. This provision essentially
represents an institutional guarantee, and thus binds the legislature to
specifically protect the institutions of parenthood and the family.
This provision can not be considered one that contains a fundamental
right. This follows anyway from the fact that this provision is subject
to a statutory limitation; under Art. 41 of the Charter it can be
claimed only within the confines of the laws implementing it. In
addition, systematically this provision is included in the category of
social rights, which are considered more a component of constitutional
soft law (cf. e.g. judgment file no. IV. US 8/05, in The Constitutional
Court of the CR: Collection of Decisions, vol. 37, judgment no. 112, p.
453; or file no. IV. US 113/05, not yet published, electronic version
available at www.judikatura.cz), in contrast to classic fundamental
rights (so-called core rights).
Both Art. 10 par. 2 of the Charter, and Art. 8 of the Convention speak
generally about protection of family life, or respect for family life,
without, however, defining in legal terms what they mean by the term
“family life.” Therefore, when interpreting these provisions, it is
necessary to start with the fact that the family is, in the first place,
a biological connection, and then a social institution, which is only
subsequently defined by a legal framework. Therefore, when interpreting
these concepts, we must take into account the biological connection, and
then also the social reality of the family and family life, which, of
course, in the last century has undergone fundamental changes.
The family is a social group of related persons, among whom there are
close ties – blood, psychosocial, emotional, economical, etc. Thus
although at the level of social reality the concept of family is very
changeable (as stated above, the social reality of the family has
undergone successive transformations, and through them the traditional
European concept of the family has disintegrated more and more
noticeably, and legal regulation of the family and family life is
necessarily also subject to these transformations), nevertheless it can
not be overlooked that the basis of family ties is traditionally
precisely the biological bond of a blood relationship between family
members.
Therefore, on the one hand we can not rule out the fact that legal
protection as a family can also be enjoyed by a social group of persons
living outside the institution of marriage, or a group of persons not
related by blood, among whom there are nonetheless the abovementioned
emotional and other ties (persons living together as mates, partners
living together with a child that was born to one of the parents from
another relationship, etc.). And that scope of the concept of family
life also arises from the case law of the European Court of Human
Rights.
On
the other hand, that concept of family and family life also assumes the
importance of blood ties between family members. In Kroon and others v.
the Netherlands the ECHR gave priority to the biological tie between the
father of a child living in a de facto bond with the mother and that
child, and denying the paternity of the mother’s husband, over the legal
situation and the legal construct of the family: “”respect’ for ‘family
life’ requires that biological and social reality prevail over a legal
presumption …” (Kroon and others v. the Netherlands, par. 40).
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
A Panel of the Constitutional Court, consisting of chairwoman Dagmar Lastovecká and judges Jiří Nykodým and Eliška Wagnerová (judge rapporteur) decided on 20 February 2007 in the matter of a constitutional complaint from K. F., represented by JUDr. L. R., attorney, against a decision by the Regional Court in Pilsen of 15 June 2006, file no. 10 Co 283/2006, and against other interference by a public authority, consisting of delays in a proceeding conducted before the District Court in Domažlice, file no. P 195/2003, with the participation of the Regional Court in Pilsen and the District Court in Domažlice as parties to the proceedings, and Václav Waldmann, residing at 345 06 Úsilov 6, represented by Mgr. Vojtěch Fořt, attorney, with his registered address in Domažlice, Nadporučíka O. Bartošky 15, as a secondary party to the proceeding, as follows:
I.
The decision by the Regional Court in Pilsen of 15 June 2006, file no.
10 Co 283/2006, violated the petitioner’s fundamental right to
protection from interference in family life, or the right to respect for
family life, guaranteed by Art. 10 par. 2 of the Charter of Fundamental
Rights and Freedoms and Art. 8 of the Convention on the Protection of
Human Rights and Fundamental Freedoms.
II. Therefore, that decision is annulled.
III. The rest of the constitutional complaint is denied.
REASONING
I.
In
her timely and duly filed constitutional complaint the petitioner
contested the abovementioned decision by the general court and proposed
that the Constitutional Court find that there were unjustified delays in
the proceeding before the District Court in Domažlice.
As
the petitioner stated in the constitutional complaint, the decision of
the District Court in Pilsen-City of 14 March 2006, ref. no. 99 P
315/2005-605, appointed the petitioner as guardian of the minor Lucie
Waldmannová (now Fainová), and provided that, as guardian, she would
raise the minor, represent her, and manager her property instead of her
parents. The decision also determined that the secondary party was to
have visitation rights with the minor every even numbered week from
Friday at 10:00 a.m. until Monday at 10:00 a.m. and every odd numbered
week on Tuesday and Thursday from 2:00 p.m. until 6:00 p.m.
In
the contested decision, the Regional Court in Pilsen changed the trial
court’s decision and set a different visitation period, every even week
from Friday at 10:00 a.m. until Sunday at 6:00 p.m. and every even week
from Thursday at 10:00 a.m. until Friday at 6:00 p.m.
The
Petitioner believes that the steps taken by the general courts, and the
contested decision itself, violated her constitutionally guaranteed
fundamental rights, as well as the fundamental rights of the minor,
specifically the fundamental right guaranteed by Art. 32 par. 1 of the
Charter of Fundamental Rights and Freedoms (the “Charter”), under which
the family is under the protection of the law and which guarantees
special protection to children and juveniles, and the fundamental right
to have a matter handled without unnecessary delay guaranteed by Art. 38
par. 2 of the Charter.
In
the constitutional complaint the petitioner first described the
circumstances of the entire case. The minor Lucie Waldmannová (now
Fainová) was born on 2 December 2002 to Miroslava Waldmannová, whose
marriage with her husband Václav Waldmann was already going through
crisis, and who had an extra-marital relationship with Martin Faina, the
petitioner’s son. On 11 December 2003 there was a tragic traffic
accident in which the minor’s mother and her friend Martin Faina died.
Because
at the time of the minor’s mother’s death her marriage with Václav
Waldmann had not been dissolved, and he was legally considered to be the
minor’s father, after the death of her mother, a preliminary order
entrusted the minor Lucie to the care of Václav Waldmann, as her legal
representative. Because the petitioner had doubts about Václav
Waldmann’s paternity, at her instigation the Supreme State Prosecutor’s
Office filed a complaint to deny paternity. During that proceeding it
was proved that Václav Waldmann is not the minor Lucie’s biological
father. A proceeding to determine paternity was subsequently begun,
which determined that Lucie’s biological father is Martin Faina, the
petitioner’s deceased son.
The
Petitioner believes that the entire matter concerning her petition to
have Lucie entrusted to her care took a disproportionately long time to
process, despite the fact that this was an urgent matter, as Lucie was
entrusted to the care of Václav Waldmann during that entire time, only
on the basis of a preliminary order. In particular, the decision-making
at the District Court in Domažlice involved delays, and although during
the proceeding the petitioner filed requests to order hearings, to issue
a final decision, and a complaint about delays in the proceeding, these
delays were never explained to the petitioner. Only after the entire
matter was transferred to the District Court in Pilsen-City, after
almost two years, was a decision made in the matter to appoint the
petitioner as guardian and entrust the minor to her care. Therefore, the
Petitioner believes that the delays in the proceeding before the
District Court in Domažlice violated her fundamental right guaranteed by
Art. 38 par. 2 of the Charter, as stated above.
As
regards the decision by the Regional Court in Pilsen, the petitioner
objected that she considers the provision of visitation between the
minor and the secondary party Václav Waldmann to be unjustified, because
he is a completely unrelated person to the minor, he is currently being
prosecuted for extensive property crimes, the court expert did not
consider his child-rearing methods to be suitable, and, not least, at
the time the constitutional complaint was filed the minor had health
problems in the genital area, evidently due to possible sexual abuse of
the minor by the secondary party. In view of this, at the same time as
she filed the constitutional petition, the petitioner filed an
application to forbid him from having contact with the minor.
These
circumstances lead the petitioner to conclude that in this case the
court should never have ordered visitation between the minor and the
secondary party. It also can not be overlooked that the visitation
granted is extensive, because it is virtually joint custody, which is
wider than is usual with most fathers. In this regard, the Petitioner
also pointed to the fact that the Act on the Family regulates only the
contact of a minor child with parents, grandparents, and siblings. The
Act does not at all address the provision of visitation with a third
party. Although the commentary on the Act on the Family does not
strictly rule out such visitation , it is necessary in each particular
case to consider primarily the rights and interests of the minor child,
in particular the child’s proper, peaceful, adequate and balanced
development.
According to
the petitioner, it is evident that the contested decision, which
provided visitation with a third party, is completely inconsistent with
the minor’s interests, as the aim of the proceeding was supposed to be
to calm the relationships, and to bring order into Lucie’s life, and
place her in a certain, particular, stable, and motivating environment,
which, also according to an expert’s assessment, the petitioner’s home
is. Instead, the minor is exposed to constant changes of environment;
according to the petitioner moving her from place to place and
delivering her to a stranger is quite certainly inconsistent with Art.
32 par. 1 of the Charter and with the principles of child protection,
but also inconsistent with the purpose and content of the Convention on
the Rights of the Child, based on which the general courts justified
their decision.
In view of
this, the petitioner proposed that the Constitutional Court annul the
contested decision and find that there were delays in the proceeding
before the District Court in Domažlice.
Upon
a request from the Constitutional Court, the Regional Court in Pilsen,
and the District Court in Domažlice, as parties to the proceeding, and
Václav Waldmann, as a secondary party to the proceedings, filed
responses to the constitutional complaint. The Constitutional Court then
also asked for a statement from the Municipal Office in Domažlice,
which had been the court-appointed guardian in the prior proceeding, but
the Constitutional Court did not receive its statement by the deadline.
In its response, the
Regional Court in Pilsen referred to the reasoning in its decision, and
added that the trial court decision was changed only for practical
reasons. The change did not change the extent of visitation that had
been set by the trial court, only improved the timing. Basically, the
appeals court thus agreed with the decision by the first level court,
which had already provided for the contact between the minor and Václav
Waldmann. The general courts based this primarily on the expert
assessment. The expert recommended the visitation in view of the minor’s
interests, and the relatively extensive visitation with an unrelated
person was accepted in view of the unusual situation in the matter. On
the legal side the appeals court based its decision on the Convention on
the Rights of the Child.
As
regards the petitioner’s claim concerning sexual abuse of the minor,
the appeals court stated that the petitioner had never indicated – nor
had there been any other evidence to indicated – sexual abuse. This
claim is raised for the first time in the constitutional complaint.
In
his response, the secondary party stated that he considers the
constitutional complaint to be obviously unjustified, and, moreover,
that it contains a number of imprecise statements, untruths, and
radically subjective “truths” from the petitioner, who presented them
that way during the entire proceedings before the general courts. For
example, it is not true that the minor was entrusted to the secondary
party on the basis of a preliminary order, because until September 2004
she was entrusted to him by law, as his daughter. After his paternity of
the minor was denied and a legal vacuum arose, the petitioner misused
it by refusing to return the minor to him during a visit. Based on that
behavior by the petitioner, in October 2004 the secondary party applied
for a preliminary order to entrust the minor to his care. Based on that
preliminary order, the secondary party had the minor in his care until
the decision making the petitioner the guardian. The paternity of the
deceased Martin Faina was not determined until the decision of 25
November 2005.
The
secondary party also stated that he does not consider the dispute to be a
battle with the petitioner, but sees it as a situation where the two
parties are not able to agree, and therefore it is necessary for the
court to decide. In contrast, according to the secondary party, the
petitioner is promoting only her own interests in this dispute, without
taking into account the results of the evidence and expert
investigation. That is why the petitioner did not accept the
psychological examination by the expert, PhDr. Prunner, which indicated
that all the parties have irreplaceable and significant importance in
the minor’s life.
The
petitioner, and especially her former husband, have behaved very
dishonorably, even aggressively, during the entire dispute, and are
capable of using any means to achieve their own interests. They have so
far filed or instigated the filing of four criminal notices against the
secondary party (for abuse and neglect of an entrusted person, for
unauthorized conduct of business and manipulation with an inheritance,
for sexual abuse) – but these accusations have not been proved. Although
all the accusations were false, and filed only in order to achieve the
interests of the petitioner’s family, the secondary party never took any
counter-measures, in order not to provoke further aggression from the
petitioner’s family. On the contrary, the secondary party, even when he
was legally considered the minor’s father and had her in his care,
permitted the petitioner and her family regular contact (at that time
this was voluntary, because such contact had not been ordered by any
court).
The development in
the situation during July and August 2006 is described in the complaints
concerning visitation filed by the secondary party, because the
petitioner decided not to respect the contested court decision. It is
also evident from these complaints why and how the minor had the health
problems described, and the entire situation as regards the secondary
party’s contact with the minor is also described.
On
30 October 2006, the Constitutional Court received an addendum from the
panel chairwoman of the Regional Court in Pilsen, that included a
report from the police commission of the Police of the CR, Criminal
Police and Investigation Service, which indicates that in the matter of
suspicion of criminal sexual abuse, the minor Lucie had been questioned,
and that no grounds arose to begin criminal prosecution.
The
Constitutional Court also requested for review the file from the
District Court Pilsen-City, file no. 99 P 315/2005, which also includes
the previous file material maintained by the District Court in Domažlice
as file no. P 195/2003.
The Constitutional Court determined the following relevant facts from the file.
The
petitioner first filed a petition to have the minor Lucie entrusted to
her care, together with a petition to issue a preliminary order on 17
December 2003, i.e. shortly after the tragic death of her son, Martin
Faina, and the Lucie’s mother, Miroslava Waldmannová (p. 14). She
justified her petition on the grounds that Lucie had been living
together with her deceased mother and the petitioner’s son in the
petitioner’s household for about 9 months before the tragic event; in
contrast, the secondary party (then the registered father of the minor)
showed no interest in the minor during that time, and his attitude
changed only after Miroslava Waldmannová’s death, when he took the minor
away from the petitioner’s household.
The
District Court in Domažlice denied the petition to issue a preliminary
order, entrusting the minor the petitioner’s care, by resolution of 22
December 2003. On 5 March 2004 the District Court in Domažlice issued a
decision in which it ordered the petitioner to have contact with the
minor at specified times (p. 44). The Regional Court in Pilsen annulled
that decision by resolution of the of 29 April 2004, on the grounds that
the verdict did not correspond to the petitioner’s petition, which
asked for the minor to be entrusted to her care (verdict ultra petitum)
(p. 77).
In the new proceedings before the trial court the petitioner submitted an expert medical / molecular genetics opinion, which indicated that Lucie’s biological father is, 99.999997% probability, the petitioner’s son.
In the new proceedings before the trial court the petitioner submitted an expert medical / molecular genetics opinion, which indicated that Lucie’s biological father is, 99.999997% probability, the petitioner’s son.
After
that the District Court in Domažlice again ruled in the matter, by a
decision of 6 August 2004 (p. 122), which denied the petitioner’s
petition. The trial court relied on the evidence presented, from which
it concluded that the secondary party, as the minor’s legal father, took
excellent care of her, and, although his biological paternity had been
disputed by the petitioner, he had thus far acted as if caring for his
own child. The trial court added that it was also necessary to consider
the actions of Lucie’s deceased mother, who, before her death, did not
file a petition to deny paternity by the six-month deadline. The court
took into account that the Supreme State Prosecutor’s Office filed a
complaint to deny paternity, which, however, has no effect on the
decision-making in this matter, even after paternity is actually denied.
The trial court also stated that the secondary party voluntarily
allowed the petitioner to have regular visits with the minor every week.
On
23 August 2004, the District Court in Domažlice issued a verdict in
file no. 5 C 144/2004, which denied the secondary party’s paternity of
the minor; the decision went into legal effect on 30 September 2004
(filed at p. 146 – 147).
In
view of this, the Regional Court in Pilsen, by resolution of 22 October
2004 annulled the trial court’s previous verdict in the matter of the
petitioner’s petition to have the minor entrusted to her care, because,
according to the appeals court, the denial of paternity created a
completely new situation, both procedural (ending the participation of
Václav Waldmann in the proceeding), and factual, because as soon as the
denial of paternity took effect, the minor was without a legal
representative (pp. 151-152).
On
15 September 2004, even before the decision denying paternity went into
legal effect, the petitioner filed a petition asking the court to
appoint her the minor’s guardian (p. 142), and on 4 October 2004 both
the petitioner and the secondary party filed petitions seeking to have
the minor entrusted to their care (pp. 154-157).
On
5 October 2004, the District Court in Domažlice issued a resolution
denying the petitioner’s petition to have the minor preliminarily
entrusted to her care, and decided that the minor was to be
preliminarily entrusted to the care of the secondary party. The general
court drew on the fact that at that time neither the petitioner nor the
secondary party had any legal relationship to the minor, because
paternity had been denied, but at the same it had not been determined
that the petitioner’s deceased son was the minor’s father. In view of
the fact that the actual relationships of both parties to the minor were
equally intensive, the court inclined toward maintaining the status quo
and leaving the minor in the care of the secondary party.
On
8 October 2004, the petitioner again filed a petition to be named
guardian, together with the petition to issue a preliminary order, to
which the District Court in Domažlice responded on the same day by
issuing a resolution denying the petition for a preliminary order on the
grounds that, by the nature of the matter, this would be a permanent
order, not an interim one.
In
a filing of 20 October 2004, the petitioner raised the objection that
the judges of the District Court in Domažlice were biased (pp. 196-198)
and on 16 December 2004 she filed a new petition seeking a preliminary
order entrusting the minor to her care (p. 232). On 14 February 2005 the
Regional Court in Pilsen, in separate resolutions, confirmed the
preliminary order entrusting the minor to the care of the secondary
party, the denial of the petitioner’s request for a preliminary order
appointing her as guardian, and decided on the objection of bias by not
removing one of the judges of the District Court in Domažlice from
decision-making (p. 254 – 258). The petitioner then, by addendum of 9
March 2005, withdrew the claim of bias against the deciding judge in the
District Court in Domažlice (p. 270).
However,
on 24 May 2005, the deciding judge declared herself biased due to the
negative relationship with the petitioner that had been created during
the proceedings. In her declaration, the judge referred to the conduct
of the petitioner and her former husband, who, she said, subjected her
to public pressure through a petition, media coverage of the case, and
repeated complaints. The Regional Court in Pilsen then decided, by
resolution of 15 June 2005, to remove the deciding judge, and assigned
the matter to the District Court in Pilsen-City.
On
1 June 2005, the petitioner filed a new petition seeking a preliminary
order entrusting the minor to her care (p. 306), which was decided by
the District Court in Pilsen-City by resolution of 4 July 2005, which
denied the petition. It stated that, legally speaking, both parties were
in the same position, because paternity had not been determined yet,
and in order to maintain a stable environment for the child he therefore
considered it most appropriate to leave the child in the care of the
secondary party.
On 12
August 2005, the minor’s guardian filed a complaint to determine
paternity with the City Office of Domažlice (p. 405). This act by the
guardian was approved by the District Court Pilsen-City, with legal
effect, on 13 September 2005, and the determination of paternity was
made by verdict of the District Court in Domažlice of 25 November 2005,
file no. 5 C 173/2005 (p. 526 – 527), which went into legal effect on 16
December 2005.
The file
also contains a psychologist’s expert assessment, prepared on 15 January
2005, that concludes that all the persons involved have a role in the
life and emotional life of the minor; the expert proposes that the
minor’s contact with all these persons be maintained. The expert also
stated that he was aware that the minor was influenced by “implants” on
the part of the petitioner and her former husband, aimed at destroying
the minor’s relationship to the secondary party. However, according to
the expert, it is necessary to maintain contact with the secondary
party, so that a feedback effect, could occur for the minor on the basis
of her own experiences, which would correct the effect of these
implants. (p. 76 of the assessment, p. 512).
After
a hearing on 14 March 2006, the District Court in Pilsen-City issued a
verdict entrusting the minor to the care of the petitioner, i.e. the
petitioner was appointed the minor’s guardian; the court ordered that
the secondary party have visitation with the minor every even-numbered
week from Friday at 10:00 a.m. until Monday at 10:00 a.m. and every
odd-numbered week on Tuesday and Thursday from 2:00 p.m. to 6:00 p.m.
The trial court justified this decision by taking into account primarily
the recommendation from the expert, who said that it was in the minor’s
interests to ensure contact with all the involved persons. As the
expert assessment identified the petitioner as the most suitable
authority figure to raise the child, the minor was entrusted to her care
and contact with the secondary party was ordered. The trial court
acknowledged that the Act on the Family expressly governs only ordering
contact with siblings or grandparents, but, if it is in the minor’s
interest, according to the trial court the relevant provisions must be
interpreted more broadly.
The
court also stated that it is aware of the risk of heightened conflict
in the relationship between the petitioner and the secondary party, as
occurred during the proceeding. Based on the expert assessment, the
court even considered it proven that, on the part of the minor’s
grandfather, this goes as far as hatred of the secondary party.
According to the court, the petitioner’s testimony indicates that if
visitation is ordered between the minor and the secondary party, she
does not intend to accept such interference. In the reasoning of its
decision, the trial court called on the parties to thoroughly respect
the visitation order, not take steps to limit visits, and not involve
the minor in their negative relationships.
In
the contested decision the Regional Court in Pilsen partly confirmed
the trial court’s verdict and partly – as regards ordering visits with
the secondary party – changed it, of course, without reducing or
expanding the total time of contact. In its reasoning the court stated
that, although § 27 of the Act on the Family does not govern contact
with persons not listed there (i.e. apart from parents, siblings and
grandparents), the court relied on the Convention on the Rights of the
Child. Under Art. 3 par. 1 and 2 of the Convention the interests of the
child must be the primary criterion in any activity concerning children.
The parties undertake to ensure for a child such protection and care as
is necessary for its well-being, and will take into account the rights
and obligations of the child’s parents, legal representatives, or other
individuals legally responsible for the child.
The
Regional Court thus added that it considered contact with the secondary
party to be a measure that protects the minor’s interests. It took into
account again the conclusion of the expert assessment, that it is
necessary to ensure contact in order for the minor to have an
opportunity to create her own “feedback” effect, to correct the effect
of the “implants” from the petitioner and her former husband, which are
aimed at destroying the minor’s relationship with the secondary party.
According to the appeals court, the minor is an adaptable child and is
used to her alternating environments.
From
the file, the Constitutional Court familiarized itself with the course
of the visitation between the minor and the secondary party, as it took
place from the time the contested decision went into effect. At p. 660
et seq. is the secondary party’s complaint of 28 July 2006 against the
conduct of the petitioner, alleged to prevent him from the visitation he
was ordered to have with the minor. On 31 July 2006, the petitioner
filed a petition seeking a preliminary order, in which she proposes
banning the secondary party’s visitation with the minor, on the grounds
of suspicion that he is sexually abusing her (p. 663 – 6665). Another
complaint by the secondary party is filed at p. 676. On 7 August 2006,
the District Court in Pilsen-City denied the petitioner’s petition on
the grounds that she did not prove the allegations concerning suspicious
of sexual abuse. On 15 August 2006, the secondary party filed a
petition for execution of the decision (p. 685).
On
6 September 2006, the City Office in Domažlice, as the appropriate body
for social-legal protection of children, filed a petition seeking a
preliminary order forbidding the secondary party’s visitation with the
minor. The grounds for the petition were that it had guided the parties
to conclude an agreement in the matter of visitation, but no agreement
had been concluded, and, on the contrary, both sides had verbally
attacked each other. According to the City Office agreement between the
parties is not possible, and that situation endangers the minor’s
healthy development (p. 695-699).
On
20 February 2007, a hearing took place before the Constitutional Court,
attended only by the petitioner and her legal representative. At the
hearing, the petitioner submitted a protocol on a hearing before the
District Court in Pilsen-City on 30 January 2007. The secondary party’s
testimony before that court was said to indicate that he showed no
interest in visitation with the minor since the filing of a criminal
notice for the crime of sexual abuse. The petitioner responded to the
Constitutional Court’s questions that the denial of paternity had not
taken place when the minor’s mother was alive because the secondary
party threatened her, and yet at that time, when the minor lived with
her mother and the petitioner’s son, he did not pay child support for
her. The secondary party last had visitation with the minor on 3 June
2006.
II.
After
stating that the constitutional complaint is permissible (§ 75 par. 1, a
contrario Act no. 182/1993 Coll., on the Constitutional Court, as
amended by later regulations, the “Act on the Constitutional Court”),
was filed on time (§ 72 par. 3 of the Act on the Constitutional Court),
and meets the other requirements specified by law [§ 30 par. 1, § 72
par. 1 let. a) of the Act on the Constitutional Court], the
Constitutional Court reviewed it on the merits, and concluded that it is
justified, although the Constitutional Court found that there was
violation of a different fundamental right than the petitioner stated in
the constitutional complaint.
III.
A)
As
stated above, in the constitutional complaint the petitioner claimed
violation of Art. 32 par. 1 of the Charter, under which parenthood and
the family are protected by the law, and which guarantees special
protection to children and juveniles. This provision essentially
represents an institutional guarantee, and thus binds the legislature to
specifically protect the institutions of parenthood and the family.
This provision can not be considered one that contains a fundamental
right. This follows anyway from the fact that this provision is subject
to a statutory limitation; under Art. 41 of the Charter it can be
claimed only within the confines of the laws implementing it. In
addition, systematically this provision is included in the category of
social rights, which are considered more a component of constitutional
soft law (cf. e.g. judgment file no. IV. US 8/05, in The Constitutional
Court of the CR: Collection of Decisions, vol. 37, judgment no. 112, p.
453; or file no. IV. US 113/05, not yet published, electronic version
available at www.judikatura.cz), in contrast to classic fundamental
rights (so-called core rights).
With
regard to this, the Constitutional Court considered the question
whether the contested general court decision is capable of interfering
with a different constitutionally guaranteed fundamental right that is,
without any doubts, considered a “traditional” fundamental right. As the
contested decision ordered visitation between the minor child and the
secondary party, and thus created an obligation for the petitioner to
deliver the minor, Lucie, to the secondary part for specified time
intervals and thus for that period tolerate a restriction, consisting of
the impossibility of living with her minor granddaughter, the
Constitutional Court concluded that the affected fundamental right in
this case is the petitioner’s right to protection of family life, which
is guaranteed by Art. 10 par. 2 of the Charter and Art. 8 of the
Convention on the Protection of Human Rights and Fundamental Freedoms
(the “Convention”).
B)
Both
Art. 10 par. 2 of the Charter, and Art. 8 of the Convention speak
generally about protection of family life, or respect for family life,
without, however, defining in legal terms what they mean by the term
“family life.” Therefore, when interpreting these provisions, it is
necessary to start with the fact that the family is, in the first place,
a biological connection, and then a social institution, which is only
subsequently defined by a legal framework. Therefore, when interpreting
these concepts, we must take into account the biological connection, and
then also the social reality of the family and family life, which, of
course, in the last century has undergone fundamental changes from an
extended family (parents, their married sons, and their wives and
children) to the so-called nuclear family (the marriage of a man and
wife, and children; cf, e.g. Možný, I.: Sociologie rodiny [The Sociology
of the Family]. SLON, Prague 1999, pp. 27-28, 47-50), which, of course,
is itself being eroded in recent times (cf. e.g. Možný, I.: Sociologie
rodiny[The Sociology of the Family]. Chapter: Konec rodiny? [The End of
the Family?] SLON, Prague 1999, pp. 199-219).
The
family is a social group of related persons, among whom there are close
ties – blood, psychosocial, emotional, economical, etc. Thus although
at the level of social reality the concept of family is very changeable
(as stated above, the social reality of the family has undergone
successive transformations, and through them the traditional European
concept of the family has disintegrated more and more noticeably, and
legal regulation of the family and family life is necessarily also
subject to these transformations), nevertheless it can not be overlooked
that the basis of family ties is traditionally precisely the biological
bond of a blood relationship between family members (on the family as
an institutional form to ensure reproduction of the species, see Možný,
I.: Sociologie rodiny [Sociology of the Family]. SLON, Prague 1999, pp.
99 and 115).
Therefore, on
the one hand we can not rule out the fact that legal protection as a
family can also be enjoyed by a social group of persons living outside
the institution of marriage, or a group of persons not related by blood,
among whom there are nonetheless the abovementioned emotional and other
ties (persons living together as mates, partners living together with a
child that was born to one of the parents from another relationship,
etc.). And that scope of the concept of family life also arises from the
case law of the European Court of Human Rights, under which, for
example, “the notion of ‘family life’ … is not confined solely to
marriage-based relationships and may encompass other de facto ‘family
ties’ where parties are living together outside marriage.” According to
the ECHR, as a rule, “living together may be a requirement for such a
relationship, exceptionally other factors may also serve to demonstrate
that a relationship has sufficient constancy to create de facto ‘family
ties’” (judgment in the case of Kroon and Others v. the Netherlands,
par. 30). On the other hand, that concept of family and family life also
assumes the importance of blood ties between family members. In Kroon
and others v. the Netherlands the ECHR gave priority to the biological
tie between the father of a child living in a de facto bond with the
mother and that child, and denying the paternity of the mother’s
husband, over the legal situation and the legal construct of the family:
“”respect’ for ‘family life’ requires that biological and social
reality prevail over a legal presumption …” (Kroon and others v. the
Netherlands, par. 40).
Therefore,
when there is a conflict between the interests of persons with blood
ties, between whom social ties forming the typical features of a family
also demonstrably exist, and the interest of unrelated persons, between
whom and the child there were also formed in the past, as a result of
long-term co-habitation, the abovementioned emotional, social, and other
ties, which would otherwise form the features of de facto family ties,
it is necessary – if there is no other compelling reason – to provide
protection to those family ties which, besides emotional and social
ties, also have the blood relationship.
Yet,
according to the ECHR decision, it follows from the obligation to
respect family life that, as soon as the existence of a family
relationship is proved, the state must fundamentally act in a manner so
that this relationship can develop, and must take measures that will
enable parent and child to be reunited (e.g. the verdict in the case
Kutzner v. Germany, par. 61).
In the decision Bronda v. Italy the ECHR stated that relationships between children and their grandparents, with whom they have lived for a certain time can be given the same protection as the relationship between a parent and child: “The Court recalls that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8. That principle applies, too, in cases like the present one in which the Court is concerned with the relations between a child and its grandparents, with whom it had lived for a time.” (judgment in Bronda v. Italy, par. 51).
In the decision Bronda v. Italy the ECHR stated that relationships between children and their grandparents, with whom they have lived for a certain time can be given the same protection as the relationship between a parent and child: “The Court recalls that the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article 8. That principle applies, too, in cases like the present one in which the Court is concerned with the relations between a child and its grandparents, with whom it had lived for a time.” (judgment in Bronda v. Italy, par. 51).
C)
The
presently adjudicated matter concerns a situation where the general
courts decided on entrusting the minor to care, or guardianship and on
ordering contact of the minor with a third, unrelated person. On one
side there is the petitioner, who is in the de facto (biological), and –
after determination of paternity – also legal position of the minor’s
grandparent; on the other side there is the interest of the secondary
party, who had the minor entrusted to his care for a certain period,
first as her legal representative, and then based on the preliminary
court order.
In the
contested decision, the Regional Court in Pilsen decided to entrust the
minor to the petitioner, and ordered that she should have contact with
the secondary party. It justified these steps, as regards factual
findings, with the conclusion of the expert assessment, according to
which it is in the minor’s interest to maintain the widest possible
contact with all the involved persons, and as regards a legal basis,
with reference to Art. 3 of the Convention on the rights of the child,
under which the interests of the child are the primary criterion for any
activity concerning children. It is evident from the reasoning in the
court’s decision, that it was aware of the proven hostile relationship
between the petitioner and the secondary party, and in its decision it
called on all the parties to cooperate in raising the minor.
As
stated above, in terms of protection of family life, the relationships
of grandparents and their grandchildren enjoy comparable protection to
that of the relationships between parents and children, if the child has
lived with the grandparents for a certain time. This applies all the
more so if the child is, as a result of a tragic event, without its
parents, and has only grandparents as the closest relatives with whom
the minor child shared a common household while the parents were still
alive, as happened in this case.
Between
the petitioner and the minor, Lucie, all the abovementioned ties exist,
that, in their aggregate, create the quality of family life (at the
very least biological and legal ties consisting of a direct blood line,
emotional and other psycho-social ties), and after the court decision
determining the paternity of the petitioner’s son, that de facto
situation was also confirmed as regards the minor’s legal status.
In
contrast, the relationship between the secondary party and Lucie can at
present be based only on emotional ties that were formed during the
time when they lived together when he was the minor’s “registered”
father. Here the Constitutional Court in no way intends to reduce the
quality of these relationships, which can reach the same level and
intensity as if the minor had been the secondary party’s own child.
Nevertheless, we can not overlook the fact that a blood tie is absent in
their relationship, nor is there a legal tie, and thus the secondary
party is an unrelated person to the minor.
It
is quite natural that where the child’s family, created by biological
ties, exists, its members are willing to have the child in their care
and raise it, even have an emotional tie to the child that has arisen
over many years, and the child has fitted into the other social ties in
that family, that alternative must outweigh the upbringing and care that
a third, unrelated person would provide for the child, even if that
person also has an emotional and social tie to the child. As mentioned
above, as soon as the existence of a family tie is proved, the state
must basically behave so that this relationship can develop, and must
take appropriate measures to unite the biological family with the child
(e.g. the judgment in Kutzner v. Germany, par. 61). Thus, the state has
an obligation to provide particular protection to that relationship,
including protection from interference by third parties. All the more
so, the state may not, through legal instruments, create a situation
that would weaken the quality, or integrity of family life and interfere
with the relationships in that family.
The
Constitutional Court believes that this is precisely what happened
through the actions of the Regional Court in Pilsen, insofar as it
ordered the regular visitation between the minor and the secondary
party.
In the
Constitutional Court’s opinion such interference in the petitioner’s
family life can not be justified on the basis of an isolated interest of
the minor, as the general court did in the contested decision.
Generally, we can agree that the interest of the child is the priority
criterion in providing protection to the family life of family members;
nonetheless, when taking that interest into account one can not ignore
the rights of parents, or legal representatives (Art. 3 par. 1, 2 of the
Convention on the Rights of the Child). The Constitutional Court
believes that in this case the general courts did not take into
consideration all relevant facts influencing a balanced evaluation of
the relationship about which they decided.
The
Constitutional Court considers it incorrect if the general court
considered the interest of the child to be proven merely by adopting the
conclusions of the expert, according to whom it would be appropriate to
ensure contact with all the involved persons, and if the court did not
pay the same attention to the existing conflict-ridden situation between
the petitioner’s family and the secondary party. Both these facts
create factors that need to be examined in terms of meeting the interest
of the child. It is necessary to weigh whether it is really in the
interest of the minor to maintain contact with the secondary party if
that is done at the price of heightened conflicts between the
petitioner’s family and the secondary party, of which the minor child
remains a witness, and basically a victim. Moreover, the courts
completely failed to take into account and evaluate the petitioner’s
rights to exercise her “parenting” rights without interruption, without
interference from the state.
Based
on the facts evident from the court files, the Constitutional Court
believes that even before the court made its decision, the conflicts
were quite intense, and the petitioner herself stated during a hearing
that she would resist allowing the minor to have contact with the
secondary party. If the conflict situations culminated immediately after
the general court decisions went into effect, in the Constitutional
Court’s opinion it would be as a result of the incorrect evaluation of
these facts by the general court.
In
this regard we can refer to the decision of the Grand Chamber of the
ECHR in Sahin v. Germany, where the court evaluated, in terms of the
right to family life, a situation where a legal and biological father’s
contact with his child was restricted on the grounds of serious disputes
between the parents, which were transferred to the child, and there was
a danger that the contact could endanger the child’s development. In
that decision the Grand Chamber of the ECHR accepted, that denying
contact on the grounds of existing tension which the child witnesses is
not violation of the right to family life. The Constitutional Court
emphasizes that that case involved the child’s contact with the actual
father, not with a third, unrelated person, as in the present case.
The
Constitutional Court adds that it is the function of the courts to
provide impartial protection to the subjective rights of the parties to a
proceeding (Art. 90 of the Constitution of the CR), not to educate them
to live better. The courts are obligated to base their decisions on the
facts determined, and not to attempt, through their decisions, to
create a situation that the court would consider suitable for the
personal life of the persons involved.
In
view of all the abovementioned reasons, the Constitutional Court
concluded that the contested decision of the Regional Court in Pilsen
violated the petitioner’s right to protection of family life, or for
respect for family life, enjoying constitutional protection under Art.
10 par. 2 of the Charter and Art. 8 of the Convention.
IV.
As
regards the part of the constitutional complaint where the petitioner
claimed violation of her right to have the matter decided in an
appropriate time period and without undue delay, the Constitutional
Court concluded that the constitutional complaint is evidently
justified.
The
Constitutional Court evaluated the steps taken by the District Court in
Domažlice by the criteria that arise from the case law of the ECHR, i.e.
evaluating the relationship between the objective complexity of the
matter, the conduct of the parties, and what was at stake for the
parties to the proceeding (see, e.g., the decisions Frydlender v.
France, Becker v. Germany, Bořánková v. the Czech Republic.).
In
the Constitutional Court’s opinion, this guardianship matter, although
it is conducted under one file number, can not be taken as one
continuous proceeding, because from the moment when the petitioner filed
the first petition to have the minor entrusted to her care on 17
December 2003, until the contested decision was issued, the general
courts ruled on a number of different petitions. It also can not be
overlooked that, during the proceedings, the facts that were relevant
for the general courts’ decision making changed significantly (the
petitioner filed her original petition when the secondary party was the
child’s registered father and therefore her legal representative, and it
was only during the proceeding that his paternity was denied and a
subsequent determination of paternity made). Thus, it can be said that
as time went on the matter became factually and legally more complicated
and objectively became more complex.
On
the other hand, it can not be overlooked that the general courts did
not at all take into account the expert assessment submitted by the
petitioner in 2004 regarding the minor’s biological paternity being that
of the petitioner’s son. They formalistically maintained the legal
construction of a legal representative, and did not take reality into
account (see the above cited ECHR judgment, Kroon and Others v. the
Netherlands). They thus created room for flawed decisions (decision of 6
August 2004).
Likewise,
when evaluating the steps taken by the general courts, it can not be
overlooked that in this matter their decision making was dependent on
the decision making and activity of, not only the general courts, but
also other state authorities (the agency for social-legal child
protection) in other proceedings. In that context, the actions of the
City Office Domažlice is especially remarkable, as it was the minor’s
guardian, and filed a petition for determination of paternity virtually a
year after (12 August 2005) the decision denying paternity went into
effect (30 September 2004). In the interim, the minor was subject to a
legal vacuum, because there was no person identified as her legal
representative, and thus the time of uncertainty, as regards her future
environment, was prolonged. Here too, however, it was possible for the
court to notify the higher authority of the relevant body was being
inactive.
As regards the
criterion consisting of the conduct of the parties to the proceedings,
it is necessary to consider that, during the proceeding, both the
petitioner and the secondary party filed a number of repeated petitions
for preliminary orders, and subsequently appeals to the trial court’s
decisions denying them. Also, the actions of the District Court in
Domažlice were undoubtedly affected by the objection of bias that the
petitioner applied against several of the trial court judges, and which
she withdrew against the deciding judge in the matter after the decision
by the Regional Court in Pilsen. Finally, it can not be overlooked that
the petitioner did not make use of the procedure under § 174a of Act
no. 6/2002 Coll., on Courts, Judges, Lay Judges, and the State
Administration of Courts, and Amending Certain Other Acts (the Act on
Courts and Judges), as amended by later regulations, and did not ask to
have those actions that she believe the court to be late in performing
ordered.
The Constitutional
Court is aware that the decision making of the general courts in matters
concerning the upbringing of minors requires increased demands for
speed of the proceedings, whose aim should be to stabilize the situation
in relation to the minor child as soon as possible. Otherwise, there is
a risk of in fact creating a “vicious circle,” where, through the
passage of time when the child lives outside the biological (related)
family, a new living environment is created for the child, which
subsequently complicates measures leading to the protection of the
family life of the biological family. This factor undoubtedly played an
important role in the general courts’ decision making on the merits,
because it obviously motivated them to order contact between the minor
and the secondary party. However, they did not pay attention to the fact
that they themselves took part in that situation, together with the
other public authority (the authority for social-legal protection of
children). Thereby they were already violating the petitioner’s right to
family life.
Nevertheless,
in view of the complexity of this case, where – as mentioned above – in
the course of the proceedings the factual and legal circumstances
changed significantly, as well as the conduct of the parties to the
proceedings, whose behavior in no small measure contributed to the
length of the proceedings and who did not exercise their rights
regarding the speed of the proceeding on time, the Constitutional Court
found no violation of the right to have a matter handled without
unnecessary delay, guaranteed by Art. 38 par. 2 of the Charter, as the
petitioner claimed in the constitutional complaint.
In
view of the foregoing, the Constitutional Court granted the
constitutional complaint under § 82 par. 2 let. a) of Act no. 182/1993
Coll., on the Constitutional Court, as amended by later regulations, in
the part aimed against the decision of the Regional Court in Pilsen, and
annulled the contested decision under § 82 par. 3 let. a) of that Act;
in the part concerning the delays in proceedings before the District
Court in Domažlice the Constitutional Court denied the constitutional
complaint under § 43 par. 2 let. a) of Act no. 182/1993 Coll., on the
Constitutional Court, as amended by later regulations, as being
evidently unjustified.
Instruction: Decisions of the Constitutional Court can not be appealed.
Brno, 20 February 2007
Instruction: Decisions of the Constitutional Court can not be appealed.