Judgment II. ÚS 568/06: Protection of Family Life

2007/02/20 - II. ÚS 568/06: Protection of Family Life

20 February 2007

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.

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).

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