Pl. US 20/94

                         JUDGMENT

         of the Constitutional Court of the Czech Republic

              In the Name of the Czech Republic


    The  Plenum of the Constitutional Court of the Czech Republic
in  the matter of the petition proposing the annulment of § 46 of
the Act on the Family, No. 94/1963 Sb., as amended, § 19 para. 1,
letter  a, subpara. 1 of Czech National Council Act No.  114/1988
Sb.,  on the Competence of Bodies of the Czech Socialist Republic
in Social Security Matters, as amended, and § 15 of Regulation of
the  Ministry of Labor and Social Affairs of the Czech  Republic,
No. 182/1991 Sb., which Implements the Act on Social Security and
the Czech National Council Act on the Competence of Bodies of the
Czech  Socialist Republic in Social Security Matters, on 28 March
1995 decided,


                        THUSLY:

    As of 1 October 1995, the following shall be annulled:

1.  § 46 of the Act on the Family, No. 94/1963 Sb., as amended;
2.  §  19 para. 1, letter a, subpara. 1 of Czech National Council
Act  No.  114/1988 Sb., on the Competence of Bodies of the  Czech
Socialist Republic in Social Security Matters, as amended;
3.   §  15  of  Regulation of the Ministry of  Labor  and  Social
Affairs of the Czech Republic, No. 182/1991 Sb., which Implements
the Act on Social Security and the Czech National Council Act  on
the  Competence  of  Bodies of the Czech  Socialist  Republic  in
Social Security Matters; as amended.


                       REASONING:

     On  16  February 1994, the complainant, Z. N., delivered  to
the  Constitutional Court of the Czech Republic a  constitutional
complaint against the 29 November 1993 resolution of the Regional
Court  in  Brno, which turned down his appeal from the  2  August
1993 judgment of the Municipal Court in Brno, in conjunction with
which  he  submitted a petition proposing the  annulment  of  the
above-cited  legal  enactments.   For  this  reason,  the   Panel
suspended  the  proceeding on the constitutional  complaint  and,
pursuant  to  §  78  para.  1 of Act No.  182/1993  Sb.,  on  the
Constitutional  Court, submitted to the Plenum for  its  decision
the  petition proposing that the provisions of both statutes  and
of the implementing regulation be annulled.

     In  presenting his reasons for the petition, the complainant
stated  that, on the basis of a decision on provisional  measures
which  the  Municipal  Office of the City  of  Brno  -  Cernovice
District  issued  in 1991, a decision was taken placing  his  son
under institutional care.  The complainant appealed against these
provisional  measures  to  the  competent  appellate  body,   the
Municipal Office of the City of Brno, Division of Social Affairs,
but  that  office  did  not grant his appeal.   Neither  did  the
criminal   court  (which  in  1993,  in  connection  with   these
decisions,  passed  judgment  on  the  complainant's  failure  to
perform his duty as a father to pay fees for care provided during
the  period  when  his son was in institutional care)  take  into
consideration  the complainant's objection that  these  decisions
constituted  a violation of his rights as well as  those  of  his
child, and this in spite of the fact that Art. 32 para. 4 of  the
Charter  of  Fundamental Rights and Basic Freedoms provides  that
parental  rights may be restricted and children  may  be  removed
from  the  custody of their parents without the parents'  consent
only  by decision of a court on the basis of a statute.   Art.  9
para.  1  of  the Convention on the Rights of the Child  contains
analogous  provisions.  In the complainant's view,  at  the  time
these decisions were made, the cited provisions of the Convention
should  have  been given, in accordance with § 2 of the  then  in
force Constitutional Act No. 23/1991 Sb., priority over statutes;
therefore, they should have taken priority over § 46 of  the  Act
on  the Family, No. 94/1963 Sb., § 19 para. 1, letter a, subpara.
1  of  Czech National Council Act No. 114/1988 Sb., and §  15  of
Regulation  of  the Ministry of Labor and Social Affairs  of  the
Czech  Republic,  No.  182/1991 Sb.   Nations  which  are  States
Parties to the above-cited Convention are, therefore, required to
ensure  that children may not be taken from the custody of  their
parents  without  the  parents'  consent,  unless  the  competent
authority  decides,  on  the  basis  of  a  court  decision,   in
accordance   with  a  valid  statute,  and  in   an   appropriate
proceeding, that such removal is in the interests of the child.

     The  Constitutional Court has ascertained from the reasoning
of  the  judgment of the Municipal Court in Brno in the  criminal
matter, file no. 4 T 113/93, that even though the Municipal Court
in Brno did not take such measures with explicit reference to the
provisions of
§  46  of  Act No. 94/1963 Sb., in its legal deliberations,  with
regard to the judgment on the complainant's guilt, in particular,
it  conducted  the case in accordance with the contents  of  that
act.  The Constitutional Court drew from these circumstances  the
conclusion that the petition proposing the annulment of a portion
of  Act No. 94/1963 Sb., as amended, as well as portions of Czech
National  Council  Act No. 114/1988 Sb., and  Regulation  of  the
Ministry  of  Labor and Social Affairs No. 182/1991 Sb.,  bear  a
close  connection  to  the circumstances  that  emerge  from  the
complainant's  constitutional complaint.  Therefore,  the  formal
requirements for the consideration of a petition on the annulment
of a statute (§ 74 of Act No. 182/1993 Sb.) have been fulfilled.

     On 1 November 1994, the petition was sent to the other party
to  the  proceeding,  that is, the Assembly of  Deputies  of  the
Parliament of the Czech Republic, with a request that  it  submit
its  views on the matter as called for in § 69 of the Act on  the
Constitutional   Court.   Its  views  were   submitted   to   the
Constitutional Court in a Memorandum, No. 3866/94, of 17 November
1994.   The  introduction  thereto contained  general  statements
concerning the exercise of parents' rights and the performance of
their  duties, which are subject to societal control.  As far  as
concerns  the  asserted conflict between the cited provisions  of
the  contested legal enactments with the provisions  of  Art.  32
para.  4  of the Charter of Fundamental Rights and Basic Freedoms
and  with Art. 9 para. 1 of the Convention on the Rights  of  the
Child, it was declared in the memorandum that no reasons could be
discerned why the three contested legal provisions would  not  be
in  conformity  with the Constitution of the Czech  Republic  and
with  other legal enactments, and that it is necessary that  they
continue  to  form part of the legal order.  In consequence,  the
Assembly  of Deputies proposed that the Constitutional Court  not
grant the complainant's petition.

     First of all, the Constitutional Court must, on the basis of
the submitted petition, draw its attention to comparing the terms
of  the provisions which are proposed to be annulled, § 46 of Act
No.  94/1963  Sb. (since its provisions create the foundation  on
which  is  built  §  19 of Act No. 114/1988  Sb.,  and  §  15  of
Regulation No. 182/1991 Sb.), with the terms of Article 32  para.
4  of  the  Charter  of  Fundamental Rights and  Basic  Freedoms.
According  to  the  express terms of the Charter  of  Fundamental
Rights   and   Basic  Freedoms,  which  forms  a  part   of   the
constitutional order of the Czech Republic, in cases  where  they
do  not give their consent, parents' rights may be restricted and
children may be removed from their custody only by decision of  a
court (on the basis of law).  The text of Article 32 para.  4  of
the  Charter leaves no doubt on this score:  "Parental rights may
be  limited and minor children may be removed from their parents'
custody against the latters' will only by the decision of a court
on the basis of the law."  The Convention on the Rights of Child,
which  this  state  is  obliged  to  implement  internally,  also
provides similar protection to children.

     If, therefore, the Charter provides that minor children  may
be removed from the custody of their parents without the latters'
consent only by the decision of a court on the basis of the  law,
and  the  provisions of the Act on the Family(§  46  of  Act  No.
94/1963 Sb.), just as the provisions the Act on the Competence of
Bodies of the Czech Socialist Republic in Social Security Matters
(§  19  of  Act  No.  114/1988 Sb), place upon district  national
committees (now district offices) the duty, in urgent  cases,  to
take  provisionally even such measures as otherwise only a  court
would  have  the  authority to take (although  they  are  obliged
without delay to notify a court, which must decide on the  matter
subsequently),  then the Constitutional Court must  come  to  the
conclusion   that   these  provisions  are   in   conflict   with
constitutional acts, as meant by § 70 of Act No. 182/1993 Sb., on
the Constitutional Court, and must annul them.

     The Constitutional Court concurs with the views submitted by
the  Assembly of Deputies' to the effect that, if a child is  not
receiving upbringing in his own family situation, then he  has  a
legal  claim  upon the state that it ensure him upbringing  in  a
situation substituting for that of his own family, thus, even  an
institutional  upbringing, if it is not possible to  provide  him
with substitute family care (§ 46, Act on the Family), so that it
is  not  only  the right of these bodies to take those  necessary
measures  which  are required by the interest in  protecting  the
rights of the minor, but it is also their legal duty.

     However,  the  Constitutional Court cannot  agree  with  the
assertion  that  the breadth of the state bodies'  authority  and
their  powers (for example, in § 46 of Act No. 94/1963 Sb. )  are
in  conformity  with  the relevant norms  of  international  law,
because,  as it has already stated, it has come to the conclusion
that   these   specific  provisions  are  in  conflict   with   a
constitutional  act  of  the Czech Republic.   For  this  reason,
neither  can  it  concur with the further assertion  that  it  is
enough  that  a  court makes a decision concerning the  immediate
placement  of children into care substituting for the  upbringing
of  the  family only subsequent to the decision by the  competent
administrative  body to make such a placement  as  a  provisional
measure.

     The  above-stated reasons, which point to the  annulment  of
the  contested provisions of both cited statutes, applies to  the
same   degree  to  the  annulment  of  the  provisions   of   the
implementing  regulations, that is §  15  of  Regulation  of  the
Ministry  of Labor and Social Affairs of the Czech Republic,  No.
182/1991 Sb.

    As  the  Constitutional Court is well aware  that  there  are
urgent  cases which require that, in the interests of the  child,
the  necessary steps be taken without delay, it is  delaying  the
entry into effect of this judgment until 1 October 1995, in order
to  allow  for the organizational, or legislative, measures  that
are  necessary to protect the interests of children, to be  taken
in  harmony  with  the Charter of Fundamental  Rights  and  Basic
Freedoms, which forms a part of the constitutional order  of  the
Czech  Republic, as well as with the International Convention  on
the Rights of the Child, by which the Czech Republic is bound.


Notice:   A  decision  of the Constitutional  Court  may  not  be
appealed.

In Brno, 28 March 1995

                                  JUDr. Zdenek Kessler, Chairman
                                  Constitutional  Court  of   the
                                  Czech Republic