09. 03. 2016
The complainant, a Czech national, and his wife, a USA national, had a child born in Vrchlabí (Czech Republic), whom they named Thymian based on their affirmative declaration. The Registry office issued a birth certificate which stated “unknown” in the section “Name(s) of the child”. The Registry received the parent’s request to indicate Thymian as the name included in the book of births. The Registry then requested that the parents submit an expert’s opinion and ordered a stay of the proceedings. The parents refused to submit the expert’s opinion and supplemented their application with an extract from publicly available websites which clearly indicated that persons named Thymian lived in the USA, the Netherlands and Germany. The Registry then discontinued the proceedings on the grounds of failure to remedy the defects of the application. The Regional Authority rejected the parents’ appeal. The Registry then notified the District Court, which, however, believed that under the Family Act, it lacked jurisdiction to decide in this matter. The complainant filed an administrative action against the decision of the Regional Authority, which the Regional Court dismissed. The Supreme Administrative Court decided based on the plaintiff’s cassation complaint to refer the case back for further proceedings. According to the Supreme Administrative Court, the Registry made an error when it requested an expert’s opinion without further considerations. According to the Supreme Administrative Court, the Registry should have continued the process of taking evidence by examining extracts from publicly accessible foreign databases of names. At variance with the legal opinion given in the judgement, the Registry again requested that the complainant provide an expert’s opinion. At this stage, the complainant approached me.
In the inquiry report, the Defender stated that the Registry’s second request to the complainant constituted maladministration as the Registry had clearly failed to take the legal opinion of the Supreme Administrative Court into account. The Registry thus violated Section 78 (5) of the Code of Administrative Justice which stipulates that administrative authorities are bound by legal opinions given by the courts in judgements cancelling their decisions. The Defender’s report also addressed certain aspects of the case that had so far been left unnoted, especially the procedural question of when administrative proceedings are initiated and also the relation between Section 62 (1) and Section 18 (4)(c) of the Act on the Registries of Births, Deaths and Marriages. The Defender also noted that it was in the interest of the child and its parents that the Registry assign a birth identification number to the newborn child, include the birth in the Register, issue a birth certificate containing the birth identification number and register the child in the population records information system as soon as possible.
Considering the fact that in the meantime, the Registry had obtained the “Historisches Deutches Vornamenbuch” (Book of Historical German First Names) where “Thymian” was indicated and had subsequently issued a birth certificate where Thymian was indicated as the name, thus remedying the situation, the Defender closed the case.