DECLARATION OF CHARTER 2017, on RIGHTS OF PARENTS OBLIGED to MAINTENANCE
The right of child to parents´ maintenance and support cannot be called into question at all. However, the Czech republic currently continues under system from the communist totalitarian times that grossly violates fundamental rights of parents obliged to maintenance, that the maintenance duty is determined in a gross diverge from the Article 4 of the Charter of fundamental rights and freedoms (hereinafter referred to as „Charter“) based only on arbitrariness of courts. Obligation to maintain and support is limitation to the fundamental right to freely dispose of property and thus, this limitation may be placed only under conditions prescribed in „Charter“, i.e. placing limitations upon fundamental right only by law that must apply in the same way to all cases which meets the specified conditions.
State authorities systematically hamper use of legal remedies of parents obliged to maintenance to protect their fundamental rights and freedoms.
RIGHT DECLARED BY THE CZECH REPUBLIC
In the Constitution dated on 16 December 1992, the Czech Republic is declared as a democratic state governed by the rule of law observing its obligations resulting from international law, and founded on respect for the rights and freedoms of man and of citizens. Commitment to protect the fundamental rights and freedoms effectively means that judicial body cannot reject without the legal reason arguments based on the fundamental rights and freedoms, that all citizens may do that which is not prohibited by law; and nobody may be compelled to do that which is not imposed upon them by law, respectively.
Elementary principles of the rule of law are declared in Article 4 of „Charter“, dated on 16 December 1992 as a part of the constitutional order. Therefore, duties may be imposed only on the basis, and within the bounds, of law, and only while respecting the fundamental rights and freedoms, while limitations may be placed upon the fundamental rights and freedoms only by law and under the conditions prescribed in the „Charter“, meaning that such a statutory limitation must apply in the same way to all cases, when the essence and significance of the fundamental rights and freedoms must be preserved. Such limitations shall not be misused for purposes other than those for which they were enacted.
Convention on the Rights of the Child (hereinafter referred to as „Convention“) became a part of the legislative framework of the Czech and Slovak Federative Republic on Czech 02 September 1991 as No. 104/1991 Coll. Pursuant to Article 3 Section 1 and 2 of this provision, the Czech Republic as the successor state is committed to ensure the best interest of child in protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents.
The Czech Republic passed its commitment to maintain necessary well-being of children resulting from the „Convention“ to parents and other relatives establishing the legal maintenance and support duty. This was done by Act No. 89/2012 Coll, the Civil Code (hereinafter referred to a „Civil Code“) that in the mandatory provision of §2 Section 1 says that each provision of private law may be interpreted only in accordance with the Charter of Fundamental Rights and Freedoms and the constitutional order in general. Should the interpretation of a provision diverge from this imperative solely on the basis of its wording, the imperative prevails.
UNENFORCEABILITY OF FUNDAMENTAL RIGHTS IN THE CZECH REPUBLIC
Declared commitment to govern by the rule of the law, non-selective implementation of international agreements („Convention“) and resulting protection of fundamental rights and freedoms are wholly illusive not only in the Czech Republic, but also at European institutions are unenforceable in fact for the Czech citizens. It seems that the judiciary in the Czech Republic does not need written laws to make decisions, while in the spirit of totalitarian theory of the constitutional right, it places duties on the same level or even to superposition to fundamental rights.
Despite the fact that setting up obligation to maintain by a financial execution is effectively placing limitations to fundamental right pursuant to Article 11 of the „Charter“ to handle freely with his or her property regardless someone else, placed limitations to this fundamental right is not prescribed by the law (contrary to provision of Article 4 Section 1 and 2 of the „Charter“), that such limitation shall apply in the same way to all cases pursuant to Article 4 Section 3 of the „Charter“.
Placing limitations to the fundamental right to handle freely with his or her property is unduly entrusted to the discretion of courts pursuant to § 913 of the „Civil Code“, but contrary to Article 4 Section 2 of the „Charter“, i.e. contrary to conditions prescribed in the „Charter“ and contrary to the mandatory provision of §2 Section 1 of „Civil Code. Pursuant to the applicable law, unlimited arbitrariness is the only „legal certainty“ and established practice in judgment of all judiciary levels in the Czech Republic. Without any support in law, the judiciary of the Czech Republic assumes powers not only to place limitations to declaratory protected fundamental rights and freedoms, but even to totally deny them. These concerned are prohibition of forced labor, the right to the free choice of his or her profession, the right to freely handle with the legitimate-acquired property and the general right to do that which is not prohibited by law, i.e. to be protected from punishment for exercise of fundamental rights, respectively. Any judicial body of a state governed by the rule of law cannot place limitations to fundamental rights nor even based on law, as expressed in Article 4 Section 2 of the „Charter“.
Against this background, it should be recalled Opinion No. Cpjn 204/2012 on 19 October 2016 issued by the Supreme Court (hereinafter referred to as „SC“) of the Czech Republic on 19 October 2016. Blatantly and contrary to the „Charter“, without taking into account changes done after November 1989, reform of the Constitution, implementation of the above-mentioned constitutional and international norms and standards, and even without any reflection of mandatory provisions of the „Civil Code“, the „SC“ assumes powers to evaluate for a person obliged to maintain their „appropriateness of employment“, their legitimacy to change profession or to evaluate reasonability of profit and loss of the self-employed persons. It seems that collegium of the „SC“ has failed to observe the nullity of the totalitarian Communist Constitution from year 1960 and that the „Charter“ entered into the force as part of the constitutional framework and declares the prohibition of forced labor and the right to free choice of his or her profession while limitations to these rights may be placed only by the law. Reference to the case-laws of the „SC“ of the Czechoslovak Socialist Republic dated on years 1968 and 1969 that were based just on the totalitarian Communist Constitution from year 1960, can be considered unworthy of a court in the democratic state governed by the rule of law!
With the above-mentioned dovetails selective application Article 3 Section 1 of the „Convention“ and circumstantial ignoring Article 3 Section 2, its effective unenforceability, respectively. All authorities in the Czech Republic, self-backing with the „best interest of the child“ in their practice and by this principle, they justify placing illegal limitations or even unconstitutional denial the fundamental rights of parents obliged to maintenance. But the following Article 3 Section 2 envisages only to provide to the child such a protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents. It is therefore obvious that the state authority of the Czech Republic is in breach of this international agreement by tolerance to placing limitations without legal reasoning to the fundamental rights of parents obliged to maintenance or even full denial of fundamental rights of these parents.
The state authority of the Czech Republic has effectively established the status denegatio iustitiae – the denial of a law even by making legally impossible any appeal to the SC in the cases of maintenance and care and thus, there is no possibility to formally highlight mentioned contradictions between the case-law of the SC and the Constitution of the Czech Republic, the „Charter“, and international agreements (the “Convention“). It must be considered why the Constitutional Court of the Czech Republic as well as the European Court of Human Rights in Strasbourg programmatically and in contradiction to the Article 8 of the Universal Declaration of Human Rights refuse to issue any comment to the question whether the parent obliged to maintenance enjoy declared fundamental rights or not.
Establishment of the duty to maintain and support is purely social and economic issue, but in the Czech Republic, the establishment of this duty is in contrary to conditions prescribed by the „Charter“ delegated by the law to absolute economic lay persons (judges) who proudly subscribe to the rough lack of knowledge of elementary economic and tax rules. The judiciary knowingly generates notional debts on maintenance fees, whose effective unenforceability is based on their absurd level. It would be well, therefore, to ask together with Article 4 Section 4 of the „Charter“, how the essence and significance of the rights and freedoms was preserved, when status quo serves to provide livelihood to judges fascinated by repression, divorce-lawyers and greedy bailiffs rather then to establish meaningful duty to maintain and support „necessary“ for well-being of child. Where is a common sense lost, if state authorities of the Czech Republic continue under system that deepens longstanding communication gap between parents and children from divorced families and that is undoubtedly one of root causes of protracted divorce disputes that stands in the way of reasonable agreement between parents in favour of a child.
There is no possibility of a public defense against mentioned crimes of the state authorities on fundamental rights and freedoms of parents obliged to maintenance, defense is excluded against false and abusive allegations of the official propaganda, that ostracizes victims of absence of declared government by the rule of law. Person is indicated as infringer of courts´ independence and is therefore in risk of judicial harassment who tries to draw attention to the rough violation of fundamental rights in the Czech Republic.
Particularly the courts in the Czech Republic are, without any control, empowered to deny citizens´ fundamental rights and freedoms despite the law declared by the Constitution and Constitutional law. Its obligation for a free citizen to reject such exercise of the state power and to resist the system, that is an effective and systematic denial of the democratic order of human rights and fundamental freedoms, while the Constitutional Authorities prevents from enforcement of remedies under constitutional law adopted.
ALL STATE AUTHORITIES IN CZECH REPUBLIC ARE CALLED:
1) to ensure placing limitations to the fundamental right to freely dispose of property by adopting law on imposing maintenance obligation in accordance with Article 4 Section 2 of the „Charter“, on the basis, and within the bounds, of law, and only while respecting all other fundamental rights and freedoms, while the limitations to them may be placed only by law that must apply in the same way to all cases;
2) to ensure protection of rights and duties of parents obliged to maintenance while ensuring necessary care child´s well-being in accordance with Article 3 Section 2 of the „Convention“;
3) to terminate ostracism and criminal or bailiff harassment of persons, whose maintenance duty was imposed not in accordance with declared principles of the rule of law, and not under conditions prescribed in Article 4 of the „Charter“, to release all prisoners sentenced for debt according to § 196 of the Penal Code;
AND EVEN AUTHORITIES OF THE EUROPEAN UNION AND EUROPEAN COUNCIL:
4) to ensure alignment of family legislation and to prevent blatant infringement of fundamental rights of citizens in the Czech Republic based on a case-law continuing under system of communist totality and not supported by the law;
Charter 2017, on Rights of Parents Obliged to Maintenance is a free association of citizens of the Czech Republic. With the present declaration It disagrees with situation of the rule of law and human rights in the country. Anybody may joint the declaration who endorses the wording notwithstanding the fact that he or she is or is not affected by arbitrariness of the judiciary.
The first signatories of Charter 2017, on Rights of Parents Obliged to Maintenance are Mr. Luboš Meszner a Mr. Tomáš Olejár, who shall inform state authorities in the Czech Republic, the European Union and the European Council.
In Prague on July 17; 2017
Luboš Meszner Tomáš Olejár