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HEADNOTES
The
right to protection of private and family life pursuant to Article 10
Section 2 of the Charter and Article 8 of the Convention prevents the
public authorities from arbitrary interference with such an intimate
sphere of each and every individual as represented by relations between
parents and a child. Those relations amount to the most natural
expression of human identity and the right of a democratic and free
society must respect their existence. Neither the substance nor the
nature of family relations is primarily based on law; the law merely
awards protection to their real-life existence. Such protection cannot
be ensured solely by an obligation to adhere to certain principles on
the side of public authorities. The state is, at the same time, obliged
to enact legislation that will ensure legal recognition of family
relations and will determine the content of such relations both in
relations among the family members and relations towards third parties.
The requirement of the agreement between the legally determined and the biological parent cannot be held absolute. The legal relation of the father and child does not amount to a mechanical reflection of the existence of a biological relationship since in time even if such biological relation is absent such a social and emotional tie can develop between the legally determined father and the child that from the point of view of the right to protection of private and family life this relation will be within the ambit of legal protection. In such a case further duration of legal relations will be dependent on more factors among which the best interests of the child will have an important role - pursuant to Article 3 para. 1 of the Convention on the Rights of the Child such an interest has to be the primary concern in decision-making activity of public authorities while, however, the child has the right to know its parents conferred by Article 7 para. 1 of the above Convention. However, the interest of the biological father who is not awarded the status of legal father and is seeking such a status cannot be denied as irrelevant nor can the interest of the legal father who is not a biological father and is contesting his paternity be dismissed. The right to the protection of private and family life of the mother of the child must also be assessed.
The requirement of the agreement between the legally determined and the biological parent cannot be held absolute. The legal relation of the father and child does not amount to a mechanical reflection of the existence of a biological relationship since in time even if such biological relation is absent such a social and emotional tie can develop between the legally determined father and the child that from the point of view of the right to protection of private and family life this relation will be within the ambit of legal protection. In such a case further duration of legal relations will be dependent on more factors among which the best interests of the child will have an important role - pursuant to Article 3 para. 1 of the Convention on the Rights of the Child such an interest has to be the primary concern in decision-making activity of public authorities while, however, the child has the right to know its parents conferred by Article 7 para. 1 of the above Convention. However, the interest of the biological father who is not awarded the status of legal father and is seeking such a status cannot be denied as irrelevant nor can the interest of the legal father who is not a biological father and is contesting his paternity be dismissed. The right to the protection of private and family life of the mother of the child must also be assessed.
The
assessment of the compliance of the Act or of another legal regulation
in proceedings pursuant to Section 64 and subs. of the Act No. 182/1993
Coll., on the Constitutional Court in its latest wording is not
reflected merely in sphere of the validity of the legal regulation but
also in the sphere of the applicability of the relevant regulation. The
Constitution itself does not restrict the protection of fundamental
rights and freedoms in the case when the grounds for their infringement
rest in the application of unconstitutional legal norm merely to the
annulment of such legal norm by the Constitutional Court but assumes
that the conclusions of the Constitutional Court will be reflected in
relation to the application of such norm by public authorities. The
potential consequence in the form of non-applicability of the Act
relates to the cases when the Constitutional Court notes collision of an
Act with constitutional order and the relevant derogatory reason
affects the legal status of an individual with respect to the
fundamental rights and freedoms. Establishing a later date for annulment
of the contested provision may not lead to the conclusion that the
ordinary courts are obliged to apply the concerned provisions in the
extent in which it is affected by the derogatory reason should as a
result of such application a possibility arise of interference with a
fundamental right or with freedom of a party to the proceedings.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE CZECH REPUBLIC
The
Constitutional Court Panel consisting of Pavel Rychetský, President of
the Court and of Justices František Duchoň, Vlasta Formánková, Vojen
Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká,
Jiří Mucha, Jiří Nykodým, Miloslav Výborný, Eliška Wagnerová, and
Michaela Židlická ruled on the petition filed by Z. S. born on February
3, 1972, residing at No. 2896/37 Telečská street in Jihlava, represented
by Mr. Jan Valihrach, Mgr., an attorney at law, residing at No. 13
Žižkova street in Jihlava and on the Second Panel of the Constitutional
Court on annulment of Section 57 para. 1 of Act No. 94/1963 Coll., on
Family in the wording of its latest reading with the Chamber of Deputies
of the Parliament of the Czech Republic and the Senate of the
Parliament of the Czech Republic as parties to the proceedings as
follows:
Provisions of Section 57 para. 1 of Act No. 94/1963 Coll., on Family are deemed annulled as of December 31, 2011.
REASONING
I. Summary of the Petition
A. Circumstances Leading to the Submission of the Constitutional Complaint Recorded under file number II. ÚS 405/09
1.
In a timely and duly submitted constitutional complaint, recorded under
file number II. ÚS 405/09 the petitioner sought to have the judgment of
the Supreme Court of the Czech Republic dated December 17, 2008, file
number Cdo 1493/2008-69, the judgment of the Regional Court in Brno
dated October 11, 2007, file number 13 Co 375/2006-35, and the judgment
of the District Court in Jihlava dated August 2, 2006, file number 21 C
36/2006-14 quashed by the Constitutional Court of the Czech Republic on
the grounds of the alleged infringement of fundamental rights of the
petitioner conferred by Article 10 para. 2 and Article 11 para. 1 and 39
of the Charter of Fundamental Rights and Basic Freedoms (hereafter only
as “the Charter”) and by Articles 6, 8 and 13 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (hereafter only
“the Convention”). The petitioner further sought to have Section 57
para. 1 of Act No. 94/1963 Coll., on Family, in the wording of its
latest reading annulled in part, namely the wording of “within six
months”.
2.
The petitioner in his constitutional complaint alleged that based on
the statutory marital presumption of paternity pursuant to Section 51
para. 1 of the Act on Family he was recorded as father of L. S., born on
February 5, 2004. However, in October 2004 the spouse of the petitioner
requested that he move out of the matrimonial home. The petitioner
maintains he failed to comprehend the request of his spouse due to
several facts including the recent birth of their son L. as well as due
to the plans of the married couple to build a residential home for the
use of the family. In November the petitioner found out that his spouse
had been involved in an extramarital affair with another man for the
period of at least two years. When the wife of the petitioner left the
matrimonial home in December 2004 while cleaning the wardrobe used by
both spouses the petitioner came by a negative of a camera film partly
containing family images and partly images related to the extramarital
affair of the petitioner’s spouse and her lover. The petitioner assumed a
suspicion that he was not the biological father of the child born in
February. The suspicion was further based on his absence from the
matrimonial home at the time of the conception due to a business trip.
The petitioner decided to undertake a DNA test with the accredited
company Generi Bioetch Ltd. The test confirmed that the petitioner was
not the biological father of L. S.
3. The petitioner also stated in his petition that in the course of the divorce proceedings his spouse proposed to resolve the paternity of the second child provided the petitioner was prepared to accept a compromise regarding his legal claim in the financial settlement of their marital property of spouses. The (now former) wife of the petitioner in response to the constitutional complaint stated the following: “It is true that in the course of the financial settlement of our marital property I proposed to the petitioner a complex solution when the issue of paternity would be addressed while I requested that he refrain from his claim [against me] for the market price of the residential flat the title to which had been transferred onto me by my grandparents in the course of the marriage free of charge. The obligation to pay the petitioner half of the market price of the property represented a substantial financial advantage in favour of the petitioner and thus he cannot claim nowadays that my attitude was immoral. It was the petitioner himself who strictly insisted on the financial settlement of the marital property and on exercise of his rights and although that was in compliance with the applicable law it definitely was not fair from the factual point of view.” As mentioned above the petitioner rejected such “a complex solution”.
3. The petitioner also stated in his petition that in the course of the divorce proceedings his spouse proposed to resolve the paternity of the second child provided the petitioner was prepared to accept a compromise regarding his legal claim in the financial settlement of their marital property of spouses. The (now former) wife of the petitioner in response to the constitutional complaint stated the following: “It is true that in the course of the financial settlement of our marital property I proposed to the petitioner a complex solution when the issue of paternity would be addressed while I requested that he refrain from his claim [against me] for the market price of the residential flat the title to which had been transferred onto me by my grandparents in the course of the marriage free of charge. The obligation to pay the petitioner half of the market price of the property represented a substantial financial advantage in favour of the petitioner and thus he cannot claim nowadays that my attitude was immoral. It was the petitioner himself who strictly insisted on the financial settlement of the marital property and on exercise of his rights and although that was in compliance with the applicable law it definitely was not fair from the factual point of view.” As mentioned above the petitioner rejected such “a complex solution”.
4.
Instead, on January 1, 2005 the petitioner filed an application with
the Supreme Public Prosecutor’s Office seeking judicial declaration
regarding the contested paternity pursuant to Section 62 of the Act on
Family. The Supreme Public Prosecutor’s Office dismissed the
application. In her response dated July 18, 2005 the public prosecutor
stated that such an application represents “an extraordinary measure”
while “the circumstances of a stabilized status of a child may only be
interfered with by the public prosecutor inter alia when the statutory
fact is satisfied that it is in the best interest of the child to allow
the paternity to be contested before court.” The public prosecutor
emphasized that such a measure would be possible “only in the event it
could be reliably established that the father recorded on the grounds of
statutory presumption of paternity had not conceived the child.” The
public prosecutor considered that such a circumstance failed to be
established. She stated that “proof could not be tested through expert
opinion in the course of inquiry into a submission” at the same time she
stated that a result of a DNA test conducted by a private company “did
not under any circumstances represent a proof the public prosecutor may
be able to rely on in her prospective inquiry.” As communicated by the
public prosecutor, the wife of the petitioner “when inquired by the
public prosecutor maintained that at the material time she was
intimately involved [solely with the petitioner] and that she contested
both her and her son L.’s prospective participation in expert testimony
procedure.” The petitioner received a similar response to his
application filed in September 2005 seeking a review of his original
application.
5.
On March 7, 2006 the action of the petitioner seeking judicial
declaration regarding the paternity of minor L. S. was submitted with
the District Court in Jihlava. The contested decision of the above court
dated August 2, 2006 dismisses the action on the grounds of vain
expiration of the statutory period of limitation pursuant to Section 5
para. 1 of the Act on Family. However, when deciding the question of
costs of proceedings renumeration the Court applied provisions of
Section 150 of the Civil Procedure Code and did not award the defendant
(the former spouse of the plaintiff) the costs of proceedings due to
grounds based on extraordinary circumstances. Such circumstances were
mainly seen by the District Court in the fact that based on an anonymous
expert report the petitioner was not the biological father of the child
and further in the fact that the former wife of the petitioner was
involved in an extramarital affair in the course of the marriage while
it was established as a fact in divorce proceedings. The decision was
affirmed on October 11, 2007 by the Regional Court in Brno in response
to the appeal submitted by the petitioner. The verdict on the costs of
the proceedings was, however, overturned by the Regional Court in Brno
imposing an obligation upon the petitioner to cover the costs of
proceedings incurred by his former wife since in the view of the
Regional Court the plaintiff must have been aware that his action could
not stand pursuant to applicable legislation. The Supreme Court
subsequently dismissed as inadmissible the appeal on the point of law
submitted by the petitioner in the contested decision dated December 17,
2008 since it did not recognize grounds for admissibility pursuant to
Section 237 para. 2 letter c) of the Civil Procedure Code.
B. Arguments of the Petitioner related to Unconstitutionality of Section 57 para. 1 of the Act on Family
6.
The petitioner assumed his fundamental right to the protection of
family life and private life pursuant to Article 10 para. 2 of the
Charter and Article 8 para. 2 of the Convention (points 7 to 9 below)
was breached by the courts that applied the contested provision of
Section 57 para. 1 of Act on Family. He simultaneously stated that the
application of provision of Section 57 para. 1 in connection with the
provision of Section 62 of Act on Family resulted in a breach of his
fundamental right to seek, via an established procedure, enforcement of
his right before an independent and impartial court pursuant to Article
36 para. 1 and 2 of the Charter and pursuant to Article 6 and 13 of the
Charter (point 11 below). Finally, the petitioner pointed out
interference with the fundamental right to own property (Article 11 of
the Charter, point 12). Apart from seeking to have the decisions of
ordinary courts set aside the petitioner proposed that the contested
provision be annulled by the Constitutional Court. To support his
petition the petitioner relied on the following arguments:
7.
Firstly, the petitioner assumes that the determination of the
commencement of the statutory period of limitation applicable to
submission of the application seeking to have judicial decision issued
regarding contested paternity based on the time when the presumed father
of the child finds out that the child was born shall not stand in the
light of the fundamental right to protection of family and private life
pursuant to Article 10 para. 2 of the Charter and Article 8 of the
Convention. With reference to the case law of the European Court of
Human Rights (hereafter only as “The European Court” or “ECHR”) namely
to the decision Kroon and others versus the Netherlands [the Judgment of
ECHR dated October 27, 1994, application No. 18535/91 [all of the
judgments referred to hereafter are available in HUDOC database at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/],
the petitioner assumes that Article 8 of the Convention guarantees to
have family relations that do not result from biological union set aside
(annulled) in order to enable the biological relations and social
reality to prevail over legal presumptions and over the requirement of
legal certainty relationships and so that any presumption of paternity
may be efficiently contested. The petitioner referred to ECHR judgment
Shofman versus Russia [Chamber Judgment of ECHR dated 24 February, 2005,
application No.74826/01], where as assumed by the petitioner the
European Court ruled regarding subject matters and factual and legal
matters nearly identical to the ones of the petitioner. According to
this judgment it is contrary to the Convention to reject modification of
the status of a child determined on the grounds of presumption of
paternity due to a period of limitation restricting the submission of
action challenging paternity while the period of limitation is based on
the moment when the father determined by presumption found out about the
birth of the child. The European Court finds introduction of a period
of limitation within which paternity can be successfully contested
justifiable by pursuit of legal certainty in family relations and by
protection of the best interest of the child, however, merely in cases
when the petitioner established as a fact or had probable cause to
assume he was not the father of a minor child since the first day of the
child’s life and yet due to circumstances unrelated to law he failed to
take any action towards contesting paternity within the statutory
period of limitation (the petitioner refers to the ECHR Chamber judgment
on inadmissibility dated October 19, 1999. application no. 34308/96 and
ECHR Chamber judgment dated November 28, 1984 in Rasmussen versus
Denmark, application no. 8777/79).
8.
The petitioner stated that the unsustainable nature of current
provisions is repeatedly addressed by the Constitutional Court itself.
The petitioner referred to the resolution of the Constitutional Court
file no. II. ÚS 289/07 dated April 4, 2007 and resolution file no. III.
ÚS 1506/07 dated January 17, 2008 (both texts as well as other
decisions of the Constitutional Court referred to are available in NALUS
database at http://nalus.usoud.cz).
The petitioner further referred to the judgment of the Constitutional
Court file no. II. ÚS 568/06 dated February 20, 2007 (cf. N 33/44 Coll.
of Judgments 399), where the Constitutional Court referring to
professional literature sources stated 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".
9.
The petitioner hereby stated that the statutory period of limitation
available to contest paternity does not in any manner enforce the trust
in personal relations since it creates pressure on the legitimate father
to find out his biological paternity in the course of the first six
months after the birth of the child. Legal framework must respect social
overlap of its relations towards a minor child. Family relations are of
crucial importance for the development of the child, its psychological
balanced development of the child’s personality and in establishing its
role within the society. In the case of the petitioner the absence of
such ties is obvious. Furthermore, his legal position represents an
imposition of a number of obligations upon him. Apart from the duty to
provide maintenance there is also the duty to bring the child up with
due care. Fulfilment of such duties requires time, emotional and
financial investment with no secure guarantee that the minor child
itself will not pursue modification of its family status in order to
absolve itself from potential obligation towards the petitioner. This
leads to an obvious disequilibrium between the obligations of the
petitioner and the anticipated obligations of the child.
10.
The petitioner assumes that the child itself is equally affected by the
circumstances in the instant case. The minor child has, pursuant to
Article 8 of the Convention, the right to establish a legal relation
with his genuine (biological) father (here the petitioner refers to ECHR
judgment dated February 7, 2002, Mikulić versus Croatia, application
no. 53176/99) and the child has right to know its parents as conferred
by Article 7 of the Convention on the Rights of the Child (declared
under No. 104/1991 Coll.).
11.
Secondly, the petitioner adds that application of provisions of Section
57 para. 1 in connection with Section 62 of the Act on Family
represents a breach of the fundamental right to assert his rights
through a legally prescribed procedure before an independent and
impartial court pursuant to Article 36 section 1 and 2 of the Charter
and to Article 6 and 13 of the Convention. Current legislation does not
allow for contesting paternity after expiration of the statutory period
of limitation. Although the Act on Family allows the father to file a
submission with the Supreme Public Prosecutor’s Office seeking to have
an application filed to contest paternity, there are no effective
procedural means to enforce filing of such application by the Supreme
Public Prosecutor’s Office. Apart from this, it follows from the
response of the Supreme Public Prosecutor’s Office to the submission of
the petitioner that the Supreme Public Prosecutor’s Office has at its
disposal no effective means to ensure legal protection of the
fundamental rights of the petitioner (the petitioner pointed out the
fact that the Supreme Public Prosecutor’s Office cannot order an expert
evaluation of the child’s DNA while a DNA test result provided by a
private company upon the initiative of the father cannot be used
either). Finally the petitioner referred to certain decisions of the
Constitutional Court where the Constitutional Court urged the Supreme
Public Prosecutor’s Office to review its attitude when it refuses to
deal with submissions seeking applications to contest paternity pursuant
to Section 62 of the Act on Family with reference to the absence of the
interest of the child in modification of family status (apart from the
Resolution referred to in point 8 the petitioner referred to Resolution
of Constitutional Court file number IV. ÚS 158/06 dated April 4, 2006
and Resolution file number IV. ÚS 466/07 dated May 28, 2007).
12.
Finally the petitioner noted the infringement of his fundamental right
to own property. The violation of the right to own property pursuant to
Article 11 of the Charter may be seen in the obligation to be fulfilled
in lieu of the biological parents potentially in lieu of the state as
well as in the fact that consequently the child having reached the age
of 18 will become an indisputable heir to the estate of the petitioner.
C. Referral to the Plenum of the Constitutional Court of Application seeking to have Section 57 para. 1 of the Act on Family Annulled
13.
By a Resolution dated June 23, 2009 file number II. ÚS 405/09-58 the
Constitutional Court arrived at the conclusion that by application of
Section 57 para. 1 of the Act on Family namely the wording “within six
months” a fact occurred that is subject to constitutional complaint and
the petitioner simultaneously alleged that the provision in question is
contrary to constitutional order. Thus the Constitutional Court referred
the petition seeking to have the relevant provision annulled to the
Assembly of the Constitutional Court for decision pursuant to Article 87
para. 1 letter a) of the Constitution.
14.
Simultaneously the Panel of Constitutional Court noted that the
relevant fact occurred through application of the entire provision
Section 57 para. 1 of the Act on Family. Should the assessment and
annulment of the statutory period of limitation be restricted to the
wording “within six months” as proposed by the petitioner, the Court
would create an entirely new legal norm stating that the husband of the
mother of the child may contest paternity of a child at any time which
would lead to a collision with the fundamental rights of a child to
protection of private and family right pursuant to Article 8 of the
Convention Article 32 para. 4 and Article 8 of the Convention on the
Rights of the Child, respectively to collision with a broadly perceived
term of the interest of the child the pursuit of which must represent
the primary focus in any activity related to children, whether
undertaken by public or private facilities of social care, courts,
administrative or legislative bodies pursuant to Article 3 para. 1 of
the Convention on the Rights of the Child, respectively to a collision
with the warranty of special protection of children and adolescents
pursuant to Article 32 para. 1 of the Charter.
15.
The Panel of the Constitutional Court added that the provision of
Section 57 para. 1 of the Act on Family is contrary to the right to
respect of private and family life of the father of the child in the
sense of the judgment of ECHR Shofman versus Russia (referred to in
point 7), contrary to the right to self-determination of the father of
the child as a component of the right to protection of privacy and
finally contrary to the right to effective remedy available to
protection of fundamental rights pursuant to Article 13 of the
Convention. In the opinion of the Panel of Constitutional Court the
unconstitutional nature of Section 57 para. 1 of the Act on Family lies
mainly in the disproportionality of fundamental rights and interests of
the father of the child whose paternity was determined on the grounds of
the first presumption of paternity, rights of the child and the child’s
mother. The unconstitutional nature of the relevant provision due to
collision with the interest of the child cannot be excluded. Thus,
pursuant to Article 78 para. 2 of the Act on Constitutional Court the
Panel of the Constitutional Court decided to refer the application
seeking to have the entire provision of Section 57 para. 1 of the Act on
Family applied in the instant matter struck down and thus establishing
procedural leeway for the Plenum of the Constitutional Court for complex
assessment of the colliding fundamental rights.
II. Summary of Statements of Parties to the Proceedings
16.
The Constitutional Court requested the file documents and invited the
parties to the proceedings to submit their opinion on annulment of the
contested provision. Due to the competence and scope of authority the
Ministry of Justice was also invited to submit its opinion.
17.
The Senate of the Parliament of the Czech Republic in its opinion
signed by its Chairman stated that the contested provision has been
included within the Act since the commencement of its validity having
come into force on April 1, 1964 with no amendments applicable. Since
the Senate of the Parliament of the Czech Republic was established as
late as in 1996 it is obvious that it did not participate in approval of
the relevant provisions.
18.
The Chamber of Deputies of the Parliament of the Czech Republic in its
opinion signed by the Deputy Chairperson Miroslava Němcová summarized
the relevant part of the assessment report for the relevant Bill of Act
on the Family that included the contested provision as well as the
legislative procedure in the National Assembly of the Czechoslovak
Socialist Republic in its third term of office. At the same time it
added that in spite of the extensive amendments to the Act on the Family
in the subsequent years the relevant provision has never been modified.
19.
The Ministry of Justice in its opinion stated that the legal means
applied when determining paternity stem from several social
requirements. The fundamental social requirement is to ensure that the
child has both parents. Another requirement is to ensure in the highest
possible number of cases that the legal relation is identical with the
biological one. Last but not least it is desirable to determine the
relationship as soon as possible after the birth of the child in order
to comply with the requirement of the maximum stability of the legal
relation of the parent and the child. Application of all of the
requirements is to be governed by the principle of the protection of the
best interest of the child. In the opinion of the Ministry of Justice
the absence of biological relationship between the petitioner and the
second interested party (the child the paternity of whose is contested
by the petitioner) is established. It is necessary to assess the
question of whether maintenance of the discrepancy between the legal
relation and the factual matrix is in the best interest of the child or
not. Under such circumstances the Supreme Public Prosecutor should have
paid more consideration to the option of submitting the application
seeking to contest the paternity since the instant circumstances meet
the statutory requirements under which such course of action may be
adopted. It is not sufficient to rely on the general notion that
contesting the paternity of a man who obviously is not the biological
parent of the child and who has no other emotional relationship the
child might benefit from is not in the interest of the child. The
Ministry of Justice disagrees with the proposal to annul the contested
provision of the Act on the Family and yet with respect to the fact that
the current legal framework and current practice of judicial bodies
relying on the provision are contrary to the adjudication of
Constitutional Court and the European Court, the Ministry proposes to
undertake amendment of the law. The amendment should specify the
circumstances under which the application seeking to contest the
paternity may be filed after the statutory period of limitation has
expired in cases when it is neither in the interest of the child nor in
the interest of the father recorded in the registry to maintain the
discrepancy between the legal and factual matrix.
20.
The Public Defender of Rights does not represent a party to the
proceedings on applications by the petitioner seeking to have provisions
of Section 57 para. 1 of the Act on Family annulled yet: he submitted
his opinion on the application based on his position of guardian ad
litem of the minor Z. S. in the proceedings on constitutional complaint.
In his opinion he did not recommend granting the application with
regard to the stable system of statutory paternity presumptions and the
time restrictions on the act of contesting paternity on the grounds of
the desired stability of a family representing the fundamental social
unit. At the same time the Public Defender of Rights noted the obvious
conflict of several interests protected by the Constitution - apart from
the legitimate interest to contest the paternity recorded within
registry as opposed to the paternity determined via exact means and the
right of the child to know its parents and the right of the mother to
protect her honour and privacy must be respected as well as the right of
the child not to have its private life interfered with, honour and good
reputation. The Defender further noted the absence of legal framework
enabling the courts to impose upon the parties to the proceedings (the
father recorded in the registry, the mother and the child) the
obligation to undergo DNA testing and the risk of undergoing such a test
in a not fully professional and expert manner.
III. Wording of the Contested Legal Provision
21.
Provision of Section 57 para. 1 of the Act on Family reads: “A husband
may, within six months from the date on which he finds out his wife
delivered a child, contest before court that he is the father of the
child.”
IV. Constitutional Conformity of the Legislative Procedure
22.
Pursuant to Article 68 para. 2 of the Act on the Constitutional Court
in the proceedings on annulment of laws and other legal regulations the
Constitutional Court tests whether the contested act or other legal
regulation was enacted and published within the framework of the scope
of authority and competence set forth by the Constitution and in a
constitutionally prescribed manner. As follows from the opinions of the
parties to the proceedings the contested provision was incorporated in
the original wording of the Act on Family dated 1963 while not being
modified by any amendments. Assessment of the legislative procedure
would thus mean assessment of compliance with constitutional regulations
that are no longer valid and that were applicable at the time of
enactment of the Act. Based on Article 66 Section 2 of the Act on the
Constitutional Court pursuing a petition shall further be inadmissible
if, prior to its delivery to the Court, the constitutional act or the
statute, with which the enactment under review is alleged to be in
conflict, lost force and effect, the Constitutional Court thus notes
that in the event of legal regulations published prior to the
Constitution coming into force on January 1, 1993 it is entitled to
assess merely the compliance of the content with the current
constitutional order and not the constitutional nature of the procedure,
the origin of the regulations and their compliance with the norm-making
authority (cf. Judgment dated October 27, 1999 file number Pl. ÚS
10/99, N 150/16 SbNU 115, 290/1999 Coll.). Thus in the instant matter
the Constitutional Court was unable to assess the mentioned procedure.
V. The Review
A. Foundations of the Review from the Point of View of the Right to Protection of Private and Family Life
23.
The right to protection of private and family life pursuant to Article
10 para. 2 of the Charter and Article 8 of the Convention prevents the
public authorities from arbitrary interference with such an intimate
sphere of each and every individual as represented by relations between
parents and a child. Those relations amount to the most natural
expression of human identity and the right of a democratic and free
society must respect their existence. Neither the substance nor the
nature of family relations is primarily based on law; the law merely
awards protection to their real-life existence. Such protection cannot
be ensured solely by an obligation to adhere to certain principles on
the side of public authorities. The state is, at the same time, obliged
to enact legislation that will ensure legal recognition of family
relations and will determine the content of such relations both in
relations among the family members and relations towards third parties.
24.
The legal determination of family must, by nature of the matter,
reflect mainly the existence of biological relations. Thus follows the
requirement that the legal determination of paternity corresponds to the
biological father unless the case is the one of adoption. This
requirement is reflected in the subjective right of the child’s father
so that his biological paternity is respected by public authority. The
right of the child to know its parents expressly set forth by Article 7
Section 1 of the Convention on the Rights of the Child also appears to
correspond to that.
25.
The importance of biological relations for their legal determination
had already been emphasized by the Constitutional Court in its judgment
file no. II. ÚS 568/06 dated February 20, 2007 (N 33/44 SbNU 399).
Therein the Constitutional Court ruled on a constitutional complaint
related to the application seeking to contest paternity filed pursuant
to Section 62 of the Act on Family by Supreme Public Prosecutor in
response to the submission of the grandmother of the child who
questioned the paternity of the father determined by law of the child of
her deceased daughter. There the Constitutional Court noted in its
judgment that “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 above-mentioned 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.”(cf.
Collection of Judgments, 114).
26.
On the other hand the insurance of the general requirement of
compliance between the biological father and the one determined by the
law cannot lead to disproportionate interference with the private life
of the parents of the child amounting to the obligation to inform the
public authorities on facts of their intimate life. Such obligation
would be unavoidable in the event the issue of paternity had to be
determined beyond reasonable doubt. Such obligation would, however, from
the point of view of the right to protection of privacy in a principal
and fundamental manner disproportionately interfere with both the
private sphere of individuals and the existence of mutual trust of the
parents of the child. Legal paternity is thus determined on the grounds
of statutory presumptions that stem from the cultural framework of the
society and enable the paternity to be determined without excessive
formal requirements. So-called marital presumption of paternity set
forth by Section 51 para. 1 of the Act on Family complies with the above
principles when, simply stated, the husband of the mother is deemed to
be considered the father of the child. Such presumption that had already
been expressed in Roman Law (pater est quem nuptiae demonstrant, thus
"the father is the one who married the woman”) stems from the assumption
that the husband of the mother is at the same time the true father of
the child.
27.
The presumption itself cannot, understandably, guarantee the true
existence of agreement of the legal and biological paternity. Potential
discrepancy between legally determined and biological paternity gives
rise to the legitimate question in what manner removal of such
discrepancy should be ensured. The fact that such circumstance
interferes with the family sphere of the legal father who is not the
biological father of the child and whose legal paternity was determined
solely by presumption of paternity cannot be omitted. In this manner the
circumstance is reflected within the legal father’s family and private
life in the scope determined by Article 10 para. 2 of the Charter and at
the same time it may interfere with the right of the child to know its
parents pursuant to Article 7 para. 1 of the Convention on the Rights of
the Child (compare the above points 23 and 24 of this Judgment)
28.
The right to remove the discrepancy between the legal and biological
paternity is supported by the father’s applications seeking to contest
paternity pursuant to Section 57 para. 1 of the Act on Family. This
provision primarily addresses the status of a legal father of a child
following their presumed family relation. The objective pursued by this
provision may undoubtedly be considered to be compliant to the interest
that the legal determination of the father corresponds to the biological
paternity. On a general level the conclusion can be found compatible
with the rights of the child to know its parents expressly set forth in
Article 7 para. 1 of the Convention on the Rights of the Child.
29.
Still the requirement of the agreement between the legally determined
and the biological parent cannot be held absolute. The legal relation of
the father and child does not amount to a mechanical reflection of the
existence of a biological relationship since in time even if such
biological relation is absent such a social and emotional tie can
develop between the legally determined father and the child that from
the point of view of the right to protection of private and family life
this relation will be within the ambit of legal protection. In such a
case further duration of legal relations will be dependent on more
factors among which the interest of the child will have an important
role - pursuant to Article 3 para. 1 of the Convention on the Rights of
the Child such an interest has to be the primary concern in
decision-making activity of public authorities while, however, the child
has the right to know its parents conferred by Article 7 para. 1 of the
above Convention. However, the interest of the biological father who is
not awarded the status of legal father and is seeking such a status
cannot be denied as irrelevant nor can the interest of the legal father
who is not the biological father and is contesting his paternity be
dismissed. The right to the protection of private and family life of the
mother of the child must also be assessed.
30.
With respect to the above circumstances it is necessary to deal with
the question whether the right to protection of private and family life
conferred onto the legally determined father of the child in Article 10
para. 2 of the Charter and Article 8 of the Convention asserts the right
of the legal father to seek to have the legal circumstances of
disagreement between biological and legal paternity removed by public
authorities and if so, under what conditions. While seeking to answer
this question other rights and interests defined within the previous
section of this Judgment must be considered.
31.
The Constitutional Court has not yet addressed this question directly.
In its adjudication the Court has been mainly confronted with
constitutional complaints of petitioners directed against communication
notice by the Supreme Public Prosecutor informing them that their
submission initiating application seeking to contest paternity pursuant
to Section 62 of the Act on Family is suspended. In relation to this the
Constitutional Court has repeatedly stated with reference to the
above-mentioned decisions of the European Court that “the current legal
matrix when the husband has the right to contest the paternity only
within the period of limitation of six months after the birth of the
child....and when the Supreme Public Prosecutor’s Office rejects to file
the mentioned application may under certain circumstances collide
mainly with Article 8 of the Convention.....and of course with the
fundamental rights and basic freedoms guaranteed by the constitutional
order..” (Resolution file number III. ÚS 289/07 dated April 26, 2007,
Resolution file number III. ÚS 1506/07 dated January 17, 2008.) At the
same time the Constitutional Court urged the Supreme Public Prosecutor’s
Office to take regard to adjudication of European Court when
interpreting the Article 8 of the Convention in assessing whether to
file the action pursuant to Section 62 of the Act on family or not.
32.
Pursuant to Article 8 of the Convention the state parties to the
Convention are not only bound by the obligation to protect the
individuals from arbitrary acts of public bodies but also a positive
obligation to ensure effective respect towards private and family life.
This might also mean an obligation to adopt measures that affect legal
relations among individuals (compare judgment Mikulić versus Croatia,
cited in section 10, section 57 and other cited judgments). Regard must
be taken to fair balance that is to be achieved between the competing
interests of individual and the society as a whole. In both cases the
state has at his disposal certain discretion (compare judgment Mikulić
versus Croatia, cited in section 10, section 57 and other cited
judgments). The limits of such discretion are outlined by further
adjudication of the European Court.
33.
In its judgment in Kroon versus the Netherlands (quoted in point 7) the
European Court noted that it is not permissible for the legal
presumption of paternity to prevail over biological and social facts
unless regard is paid to both the established facts and the wishes of
the interested individuals. The European Court analyzed this conclusion
in its judgment in Shofman versus Russia (quoted in point 7 of this
Judgment) when it recognized a breach of the fundamental right of the
petitioner pursuant to Article 8 of the Convention as a result of
absence of opportunity to contest paternity. The legislation therein
only allowed for such option within the statutory period of one year
from the date when the person officially recorded in the registry as
father finds out that the birth of a child has been recorded. The
relevant judgment does not recognize that the Convention is violated as a
result of the very existence of the statutory period of limitation of
one year within which paternity can be contested but as a result of such
a period of limitation being tied to the date when the husband of the
mother of a child learns that the birth of a child has been recorded
while no other means were provided to the father determined by the
presumption of paternity to contest the paternity in circumstances when
even a court deemed him not to be the biological father.
34.
The statutory period of limitation available to contest paternity had
previously been accepted by the European Court in its earlier decisions
when it emphasized that introducing a period of limitation regarding the
proceedings seeking to contest paternity is justifiable by the pursuit
of legal certainty in family relations and pursuit of protection of the
interests of the child (judgment Rasmussen versus Denmark, quoted in
point 7, point 41). The European Court further found in another matter
that as soon as the period of limitation available to the petitioner to
contest the paternity has expired, more weight was accorded to the
protected interests of the child than to the interests of the petitioner
to contest the paternity (decision on admissibility in Yildirim versus
Austria, quoted in point 7). The fact whether the petitioner knew with
certainty or had reasons to assume that he is not the biological father
of the child from the very birth of the child and failed to take action
to contest presumption based paternity is relevant to the assessment.
When assessing the infringement of Article 8 of the Convention is thus
rather concerned with defining the conditions of determination of the
period of limitation available to contest paternity rather than the very
existence of such period of limitation.
35.
The last above-mentioned decisions of the European Court were reflected
by the Constitutional Court within the assessment of the constitutional
complaints directed against the procedure adopted by the Supreme Public
Prosecutor. In its Resolution file number IV. ÚS 2058/07 dated March 3,
2008 (U 3/48 SbNU 977) the Constitutional Court noted that “it is
clearly established by the content of the submitted application that the
petitioner had doubts of substantial nature regarding his paternity as
early as in the course of the statutory period of limitation within
which he was allowed to pursue the right denied to him by submitting an
action; had he not assumed such doubts, he would certainly have not had
any reason to verify the circumstances by initiating a DNA test.
However, then the indifferent approach of the petitioner towards the
statutory period of limitation available for submission of the action
(whether it be for either lack of knowledge regarding the period of
limitation or other reasons) appears to represent an action - or rather
more precisely said ‘absence of action’- leading to the consequence
against the petitioner expressed by an ancient principle formulated by
Justinian: ‘vigilantibus, non dormientibus iura subveniunt’ - ‘the law
assists those that are vigilant with their rights, and not those that
sleep thereupon'. Thus, initially not the communication by the Supreme
Public Prosecutor’s Office addressed to the petitioner after the
expiration of the statutory period for paternity action but the
circumstances brought upon by the petitioner himself - due to his
inactivity regarding the paternity action - resulted in the situation
that in deed could be generally viewed as contrary to the fundamental
right ....to respect of family life” (cf. Coll. of Judgments, 981 -
982).
36.
In the light of the above conclusions of the Constitutional Court and
the European Court it can be summarized that the question of existence
of agreement between biological and legal paternity is reflected in the
fundamental right of an individual in the position of the legally
determined father who alleges that he is not the biological father to
the protection of private and family life pursuant to Article 10 Section
2 of the Charter and Article 8 of the Convention as well as in the
right of the child to know its parents conferred by Article 7 Section 1
of the Convention on the Rights of the Child. Equally the marital
presumption of paternity with no sufficient opportunity to legally
contest the agreement of legal and biological paternity and at the same
time to seek declaration that the legal paternity is void in the case it
disagrees with the biological paternity may under certain circumstances
represent breach of such a right. A conclusion cannot be arrived at
that the continuation of legal paternity which is in disagreement with
biological paternity amounts to a breach of the fundamental right of the
legal father to private and family right by a public authority. Regard
must necessarily be paid to the fact of whether the interest of the
child exists in continuation of such status as well as whether the legal
father had or might have had the knowledge of the fact that he is not
the biological father of the child, whether he had the opportunity to
seek determination before a public body that he is not the legal father
of the child and finally whether he made use of such an opportunity.
B. Assessment of the Petition
37.
The matter of constitutional assessment in the instant case is the
question of whether the opportunity to contest paternity within the six
month statutory period of limitation commencing at the time when the
husband learns of the birth of a child to his wife will stand from the
point of view of constitutionally guaranteed rights of the legal father -
thus of the individual the paternity of whose is determined by the law
by marital presumption. The Constitutional Court has repeatedly
addressed the issues of the constitutional nature of period of
limitations in a number of its judgments while it noted that a statutory
period of limitation prima facie does not and cannot in itself bear any
elements of unconstitutionality. Such elements may appear only from the
“specific circumstances” of the evaluated matter, in other words,
“evaluation of the constitutionality of a period of limitation/deadline
is an evaluation in context” [judgment file number Pl. ÚS 6/05 dated
December 13, 2005] (cf. N 226/39 Coll. of Judgments 389; 531/2005
Coll.)]. Such specific circumstances include, in reliance on current
case law of the Constitutional Court, mainly disproportionality of the
period of limitation in relation to the opportunity to enforce a
constitutionally guaranteed right being limited by a period of
limitation [cf. Judgment file no. Pl. ÚS 5/03 dated July 9, 2003). (cf.
N 109/30 Coll. of Judgments 499; 211/2003 Coll.)] or arbitrariness of
the legislature in establishing the period of limitation (its
codification or annulment) [cf. Judgment file no. Pl. ÚS 2/02 dated
March 9, 2004 9 (N 35/32 Collection of Judgments 331; 278/2004 Coll.)].
38.
Although legal presumptions of paternity as mentioned earlier simplify
the determination of paternity in a significant manner, they cannot by
the nature of the matter be deemed to represent sufficient guarantee of
agreement between biological and legal paternity. It is thus necessary
for the legal order to establish other means apart from such
presumptions that will serve the purpose to the individual whose
paternity was determined by presumption and who is contesting his
biological paternity to seek protection of his subjective rights by
establishing in proceedings before a public authority that he is not the
biological father of the child.
39.
Such requirement does not only follow from the right to the protection
of private and family life as analyzed in detail by the Constitutional
Court in the previous part of this Judgment but is in essence related to
the right to have one’s subjective rights protected before court
conferred upon each and every individual by Article 36 Section 1 of the
Charter.
40.
Paternity action that may be filed by the Supreme Public Prosecutor
pursuant to Section 62 of the Act on Family cannot be deemed to
represent legal means of protection of the fundamental right of the
legal father. Such action pursues a different objective than action
submitted pursuant to the contested provision. The Supreme Public
Prosecutor may file the above action solely in the interest of the
child. Such interest, however, will not be identical to the one of the
legal father. If we take regard of the fact that in the instant case the
petitioner’s child is a minor one, the legal relation between the legal
father and the child will, by nature of the matter and not only in this
case, pursue mainly the interest of the minor child and thus it will
hardly be possible to anticipate that the supreme public prosecutor will
file paternity action.
41.
Equally the fact that there is no legal entitlement to have the
paternity action filed by the Supreme Public Prosecutor and that it is
solely at the discretion of the Supreme Public Prosecutor to file such a
submission cannot be disregarded. A potential submission of a father
determined by marital presumption seeking to initiate such action does
not represent an application to initiate the proceedings itself; it does
not initiate proceedings in which a decision must be issued that would
be subject to judicial review regarding the application of the
discretionary power of the public prosecutor. This has repeatedly been
affirmed by the Constitutional Court when it noted in certain decisions
that the procedure adopted by the Supreme Public Prosecutor or their
memorandum informing the author of the submission that the action shall
not be filed “cannot be deemed to represent infringement by a public
authority pursuant to Article 72 para. 1 letter a) of the Act on the
Constitutional Court (cf. i.e. Resolution file No. IV. ÚS 2058/07 cited
in point 35, cited in Collection of Judgments 982, in detail in
Resolution file no. III. ÚS 289/07 dated April 24, 2007). It thus means
that it is entirely at the discretion of the Supreme Public Prosecutor
to assess the question of interest of the child and its potential
agreement with the interest of the legal father in a specific matter
while the discretion of the supreme public prosecutor is not subject to
judicial review. On the problematic issue of regarding the application
of the supreme public prosecutor seeking to have the paternity contested
compare forward the source of Jíšová, A.: Application of the Supreme
Public Prosecutor seeking to have the paternity contested in practice
(for discussion). Bulletin of Advocacy. 11-12/2006, pg. 80 to 86.
42.
On the other hand, the contested provision of Section 57 para. 1 of the
Act on Family undoubtedly confers one of the above mentioned means
mentioned in point 37 since it allows for the husband of the mother of
the child to contest the paternity by paternity action that must be
filed within the statutory period of limitation of six months from the
day on which the father learned of the birth of the child to his wife.
Thus certain procedural leeway is established for the husband of the
mother to seek protection of his rights by determining he is not the
true father of the child, for which reasons cannot be deemed the legal
father. It must, nevertheless, be assessed whether the circumstances for
application of the contested provision respect the limits determined by
law in order to protect private and family life, addressed in detail in
the previous part of this Judgment as well as the right to judicial
protection pursuant to Article 36 para. 1 of the Charter.
43.
The contested provision restricts the opportunity to file paternity
action to the period of six months from the day when the husband of the
mother learned that a child has been born to his wife. It is obvious
that in the vast majority of cases to which the relevant provision will
apply the day when the husband will learn of the birth of the child will
be identical to the one of the date of birth of the child. Such
definition of the statutory period of limitation, however, entirely
denies the substantial nature of time at which the man whose paternity
was based on marital presumption learns relevant facts questioning his
paternity. And yet, it is clear that it is only from such a time when
the legal father has a real opportunity to assess the consequences of
such findings on his personal life including the opportunity to turn to
the relevant public authority with an application seeking to contest his
paternity.
44.
The period of limitation set forth in such a manner fails to reflect
the specific nature of legal relations between the legal father and the
child. When establishing the statutory period of limitation for
paternity action presumption that the legal father had to have or should
have had the knowledge of all relevant circumstances leading to his
potential interest in contesting paternity at the time when he learned
of the birth of the child to his wife cannot be relied on. Equally the
requirement cannot be imposed upon the husband to undertake preventive
review of certain circumstances potentially establishing that he is not
the biological father of the child within the first six months since the
birth of the child. The determination of an effective opportunity to
seek protection of one’s right must also reflect the other side of the
right to protection of private and personal life prohibiting the state
from arbitrary and disproportionate manner of interference with private
and family life of an individual. This means that the legal provisions
may not ignore the fact that a substantial legal interest in contesting
paternity may arise in a (sometimes significant) time interval after the
birth of the child and neither may they ignore the fact that even at
such time the interest of the father in denying paternity may prevail as
indicated by adjudication of ECHR (compare ECHR Judgment Shofman versus
Russia, cited in point 7 or ECHR Chamber Judgment Paulík versus
Slovakia dated October 10., 2006, application no. 10699/05, where the
applicant successfully sought to contest paternity more than 30 years
after the birth of the child).
45.
On those grounds the Constitutional Court arrived at the conclusion
that the contested provision of Section 57 para. 1 of Act on Family is
contrary to Article 10 para. 2 of the Charter and Article 8 of the
Convention as well as contrary to Article 46 of the Charter.
VI. Wording of Derogatory Statement and Legal Effect of the Derogatory Statement on Legislature and Ordinary Courts
46.
The Constitutional Court held in response to the proposition of the
Second Panel of Constitutional Court to annul the entire contested
provision of Section 57 para. 1 of Act on Family. In this light the
Court emphasizes that the above reasons do not in any manner undermine
the constitutionality of the opportunity to file a paternity action in
the period of limitation within six months from the date when the father
learns of the birth of a child to his wife. Derogatory grounds do not
effect the entitlement that had not been contested in itself by the
petitioner but on the exclusion of the submission of paternity action
after expiration of the period of limitation. The Constitutional Court
was not able to grant the petition solely in relation to the wording
“within six months”, thus in the extent in which the petitioner sought
to have the contested provision annulled.
47.
By such procedure applied by Constitutional Court a new legal norm
would be established enabling paternity actions regardless the infringed
rights and protected interests of individuals other than the legal
father of the child who intends to contest his paternity defined in
point 29 of this Judgment. Derogatory judgment would thus remove the
infringement of fundamental rights of legal father but at the same time
establish infringement of fundamental rights and protected interests of
other interested individuals.
48.
As noted above by the Constitutional Court the determination of
definite limitation period for paternity action is not in itself
unconstitutional; such period of limitation and circumstances of its
duration must, however, well as the limitation period itself be defined
so as to respect all concerned rights and protected interests in a
balanced manner.
49.
An option arises that the legal father determined by marital
presumption would be awarded an opportunity to file a paternity action
contesting paternity for a certain period of time regardless further
circumstances (fundamental rights and protected interest defined in
point 29 of this Judgment) as is the current case. In such case,
however, the period of six months is to be considered as
disproportionately short and the determination of commencement on the
day when the husband of the mother learns of the birth of the child
(Section 57 para. 1 of the Act on Family) is equally problematic as
follows from reasoning provided in detail above in Section 44 of this
Judgment. In Slovak Republic the originally three years long statutory
period of limitation was replaced by period of limitation in the
duration of three years.
50.
Even after expiration of the period of limitation construed in such a
manner the paternity actions cannot be denied entirely to individuals
who might have a legitimate interest in contesting paternity (defined in
point 29 of this Judgment) mainly lying in protection of their
fundamental rights. Currently Section 62 of the Act on Family allows
for submission seeking to contest paternity regardless the passage of
time, nevertheless only with regards to the interest of the child. As
has already been stated in the above points 40 and 41 of this Judgment
such application cannot be deemed to represent sufficient means of
protection of rights pursuant to Article 36 of the Charter and it is a
question what is the justification behind such application in the legal
order of a democratic rule of law state. In relation to this it does not
appear uninteresting to mention that this legal tool was first
established in the legal order applicable within the territory of
current Czech Republic within the so called race-oriented legislation
(Section 2 para. 3 of the Government Decree No. 180/1941 Coll., by which
certain regulations regarding disputes on family or blood-related
origin are issued).
51.
To ensure protection of fundamental rights and protected interest
defined in point 29 of this Judgment it is thus necessary to amend in a
special manner the application seeking to contest paternity that might
be submitted in the interest of the protection of such rights and
protected interests of the relevant individuals, including legal father
whose special period of limitation allowing for the submission of such
application specified in point 49 above has already expired. When
construing the admissibility of such application the fact must be
regarded whether the legal father might have learned the circumstances
casting doubts over his paternity and whether having knowledge of such
circumstances he took legal action to contest his paternity and whether
the act of contesting the paternity is not hindered - in the specific
case and not in general - by other protected interests, mainly the
interest of the child to which privileged and yet not an absolute status
is assigned by Article 3 para. 1 of the Convention. Thus when
establishing new period of limitation affecting other presumptions of
paternity and other entitled entities the legislature should regard the
interest of all interested parties to the proceedings with special
emphasis placed on the interest of the child and stability of family
relations as well as the need of family background for the upbringing of
the child. Should the legislature amend the opportunity to waive even
the newly established limitation period in entirely special and
justifiable cases that are by current legislation solely at the
discretion of the Supreme Public Prosecutor not only must the
legislature stipulate clear conditions for such a waiver of period of
limitation but also clear limitations in the interest of the protection
of the rights of the child and the mother. From the point of evidentiary
issues in paternity disputes the procedural regulation will have to be
amended accordingly regarding the evidentiary tools allowing for the
expert opinions in the area of healthcare and branch of genetics,
conducted via the method of DNA polymorphism testing with obligatory
participation of the presumed father, the child and the mother.
52.
Since the derogatory reasons do not relate to the possibility of
submission of paternity action in the period of limitation stipulated by
the contested provision but to the exclusion of application of the
limitation period at a later date and regarding the necessity of
establishing sufficient time scale for a complex assessment and
enactment of new legislation, the Constitutional Court held pursuant to
Section 70 of the Act No. 182/1993 Coll., on the Constitutional Court
that the contested provision shall be annulled as off December 31,
2011.
53.
To conclude the Constitutional Court adds that the assessment of the
compliance of the Act or of another legal regulation in proceedings
pursuant to Section 64 and subs. of the Act No. 182/1993 Coll. on the
Constitutional Court in its latest wording is not reflected merely in
the sphere of validity of the legal regulation but also in the sphere of
applicability of the relevant regulation. The Constitution itself does
not restrict the protection of fundamental rights and freedoms in the
case when the grounds for their infringement rest in the application of
unconstitutional legal norm merely to the annulment of such legal norm
by the Constitutional Court but assumes that the conclusions of the
Constitutional Court will be reflected in relation to the application of
such norm by public authorities. Such conclusion is obvious from the
consistent adjudication of the Constitutional Court that allows for the
review of an annulled Act upon a petition of an ordinary court pursuant
to Article 95 para. 2 of the Constitution in the event that it arrives
to the conclusion that it is contrary to the constitutional order; c.f.
i.e. Judgment file no. Pl. ÚS 38/06 dated February 6, 2007 (cf. N 23/44
Coll. of Judgments 279; 84/2007 Coll.). In such a case it is not
decisive whether the concerned Act had been annulled but whether the
legal norm contained within the wording of such an Act is still
applicable and the assessment of the question of constitutionality is a
necessary presumption for the decision of the court in the matter
itself. The Constitutional Court thus does not rule on annulment of an
Act that has already been annulled but on its applicability while the
consequence of the academic statement on collision with the
constitutional order lies in non-applicability of the concerned legal
provision should not only the legal provision and thus the legislative
tool be contrary to the constitutional order but should this be the case
also for the purpose or definition of the circumstances under which the
purpose intended by the legislature may be achieved in a
constitutionally conforming manner, that means by direct application of
the constitutional order; c.f. Judgment file no. Pl. ÚS 35/08 dated
April 7, 2009 (151/2009 Coll.).
54.
The above conclusions were relied on by the Constitutional Court in the
instant case. The potential consequence in the form of
non-applicability of the Act cannot be restricted solely to the
proceedings on application by an ordinary court pursuant to Article 95
para. 2 of the Constitution as it is related to all other cases when
the Constitutional Court notes collision of an Act with constitutional
order and the relevant derogatory reason affects the legal status of an
individual with respect to the fundamental rights and freedoms.
Moreover, in the instant case the petitioner in question filed the
application seeking to have an Act annulled as well as the
constitutional complaint while pursuing protection of his fundamental
right. The Constitutional Court thus notes that establishing a later
date for annulment of the contested provision may not lead to the
conclusion that the ordinary courts are obliged to apply the concerned
provisions in the extent in which it is affected by the derogatory
reason should as a result of such application a possibility arise of
interference with a fundamental right or with freedom of a party to the
proceedings.
55.
In relations to Section 57 Article 1 of the Act on Family this means
that should the legal father determined by the marital presumption learn
of facts that would cast doubt over his biological paternity in the
course of or after the expiration of limitation period for paternity
action the ordinary courts are obliged to refrain from application of
the concerned period of limitation and assess the action in question
even if the action is submitted after the expiration of limitation
period. Non-application of such period of limitation does not, however,
mean absence of time constraint with regards to such action. The
Constitutional Court did not find that the existence of the period of
limitation as such was unconstitutional but held that the exclusion of
an opportunity to contest legal paternity in a legally relevant manner
was unconstitutional. Should the ordinary courts assess the action in
question they will not only have to assess the question of paternity but
also the question of the concerned rights and protected interests
defined in point 29 of this Judgment. Until the legislature issues a new
decision on definition of period of limitation for paternity action
this thus means also assessing whether the action will stand from the
point of view of proportionality of interference with the rights and
protected interest of other persons mainly with regards to the time
elapsed from the date when the facts relevant for paternity action were
learned.