437/2012 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided under the SP. zn. PL. ÚS 1/12 of 27 July. November 2012

the plenary consisting of the President of the Court and the judge-rapporteur Pavel Rychetský, and

judges Stanislav ass-bag, Vlasta Formánkové, Vojena Güttlera, Paul

Holländera, Ivana Janů, Vladimir Crust, Dagmar Lastovecké, Jana

Musil, Jiří Nykodýma, Miloslava Excellent and Michaela Židlické on

the proposal of a group of members of Parliament of the Czech Republic,

the represented Member of JUDr. Jeronýmem Tejcem, on the repeal of law No.

341/2011 Coll. on general inspection and security forces of change

related laws, Act No. 364/2011 Coll., amending certain

the laws in the context of austerity in the scope of the Ministry of

labour and Social Affairs, the Act No 365/2011 Coll., amending Act

No 262/2006 SB., labour code, as amended, and other

related laws, Act No. 366/2011 Coll., amending Act No.

111/2006 Coll. on assistance in material need, as amended,

Law No. 108/2006 Coll., on social services, as amended

legislation, Act No. 117/1995 Coll., on State social assistance, as amended by

amended, and other related laws, Act No. 367/2011

Coll., amending Act No. 435/2004 Coll., on employment, as amended by

amended, and other related laws, Act No. 369/2011

Coll., amending Act No. 48/1997 Coll., on public health

insurance and amending and supplementing certain related laws, as amended by

amended, and some other laws, Act No. 370/2011 Sb.

amending Act No. 235/2004 Coll., on value added tax, in the

as amended, and other related laws, law No.

372/2011 Coll. on health services and conditions of their provision

(Health Services Act), Act No. 373/2011 Coll., on specific

health services, law No 374/2011 Coll. on health emergency

service, Act No. 375/2011 Coll., amending certain laws in the

connection with the adoption of the law on health services, the law on the

specific health services and the health emergency Act

service, Act No. 426/2011 Coll., on pension savings, the law No.

427/2011 Coll. on supplementary pension savings, and Act No. 428/2011 Sb.

amending certain laws in connection with the adoption of the law on

retirement savings and the Act on supplementary pension savings, respectively

on the repeal of section 30 paragraph. 2 (a). d) of Act No. 435/2004 Coll., on

employment, as amended by Act No 367/2011 Coll., section 18a, paragraph. 1 of law No.

111/2006 Coll. on assistance in material need, in the wording of Act No 366/2011 Sb.

in the words of "and the persons in the register of job seekers ^ 54)", and

§ 121 paragraph. 1 and 5 of law no 372/2011 Coll. on health services and

the conditions of their provision (law on health services),

Alternatively, on the proposal for the next participant cancellation section 70 to 78, § 114

paragraph. 1 (a). (g)), § 117 paragraph. 1 (a). (e)), f), (g)), n), and r). 3

(a). d), (e)), f), (g)), h), (i)) and m) of Act No. 372/2011 Coll. on health

services and conditions of their provision (law on health

services), respectively on the proposal to repeal the secondary participant to section 4

paragraph. 5, § 14, § 28 paragraph. 2, § 35, § 36 odst. 3, 5 and 6, section 45 to 47, §

paragraph 48. 1 and 2, § 50, § 52 to 54 of Act No. 372/2011 Coll. on health

services and conditions of their provision (law on health

services), with the participation of the Chamber of deputies of the Parliament of the Czech Republic and

Senate of the Parliament of the Czech Republic as the parties and groups

the Senators of the Senate of the Parliament of the Czech Republic, represented by JUDr. J. M.,

the lawyer, and a group of members of the Chamber of deputies of the Czech Parliament

Republic, represented by Member of JUDr. Vojtech Filip, as

minor parties



as follows:



I. the provisions of § 30 paragraph. 2 (a). d) of Act No. 435/2004 Coll., on

employment, as amended by Act No 367/2011 Coll., shall be cancelled on the day of its publication

the finding in the journal of laws.



II. the provisions of § 121 paragraph. 1 in the words "for a period of not more than 36 months

from the date of entry into force of this Act, unless the context otherwise requires ",

including the commas preceding them. 4, the first sentence in the words

"However, at the latest on the expiry of 36 months from the date of entry into force of this

the law ", including the commas preceding them. 4 second sentence and paragraph. 5

Act No. 372/2011 Coll. on health services and conditions of their

provision (law on health services) shall be cancelled on the day of its publication

the finding in the journal of laws.



III. the provisions of sections 76 and 77 of Act No. 372/2011 Coll. on health

services and conditions of their provision (law on health

the services) shall be cancelled on the day of the announcement of the award in the collection of laws.



IV. the provisions of § 36 odst. 3 of Act No. 372/2011 Coll. on health

services and conditions of their provision (law on health

services), the words "the validity of previously express wishes is 5 years old."

cancels the date of publication of the finding in the journal of laws.



V. the remainder of the proposal is rejected.



Justification



(I).



The subject of the proceedings



1. Day 6. January 2012 was the Constitutional Court delivered a draft of the Group 45

Members for which it is a member of Mgr. Bohuslav Sobotka, from 12.

November 2012, represented by Member of JUDr. Jeronýmem Tejcem (hereinafter also

"the plaintiffs"), on the abolition of the laws referred to in the heading of the 14. According to the

plaintiffs, their adoption has occurred in a manner not in accordance with the

some constitutional principles relating to the legislative process,

Since then, they have been the suggestions of these laws rejected or returned

The Senate is the Chamber of Deputies discussed the debate in a merged to all

of them, and in the context of this debate, limit the period of each of the rhetorical

members of Parliament for ten minutes and the number of their speeches to not more than two.



2. In case that the Constitutional Court has not complied with this proposal, the

the appellants further fight over the repeal of § 30 paragraph. 2 (a). (d)) of law No.

435/2004 Coll., on employment, as amended by the contested act no 367/2011

Coll. and section 18a, paragraph. 1 of law No 111/2006 Coll. on assistance in material need,

in the text of the contested Act No. 366/2011 Coll., in the words of "and the persons

in the registration of job seekers ^ 54) ". These provisions

extended the possibility of performance of the public service and to persons held in

the registration of job seekers with the fact that the rejection of its performance in

the extent of a maximum of 20 hours per week without a serious reason is the reason for the disposal of

This evidence, if the candidate was kept continuously for more than 2

of the month. At the same time proposed the abolition of the transitional provisions of § 121 paragraph. 1 and

5 of law no 372/2011 Coll. on health services and conditions of their

provision (law on health services), which was established

the obligation of the new registration of providers of health services.



3. In the course of the proceedings, the Constitutional Court received two more suggestions other

actively legitimised bodies, which were directed against the original proposal

the contested Law on health services, or one of its

the provisions. A group of 20 senators, for which the Senator is MUDr. Alena

Dernerová, filed June 9. January 2012 the proposal to repeal section 70 to 78 of the law

about health services, containing a new National legislation

health information system. Her proposal, however, also against the SEC.

paragraph 114. 1 (a). (g)), § 117 paragraph. 1 (a). (e)), f), (g)), n), and r). 3

(a). d), (e)), f), (g)), h), (i)) and m) of the Act on health services, which

define the merits of certain offences in the area of provision of

health services and the penalties for them, as well as against the above

transitional provisions of § 121 paragraph. 1 and 5 of the Act on health services,

which concerned a proposal of the group members.



4. a proposal for the abolition of the law on health services as a whole, which was

The Constitutional Court delivered a 13. February 2012, eventually handed even more, from the

a different group of plaintiffs, 41 members, which is a Member

JUDr. Vojtěch Filip. These MEPs have formulated in the first place General

objections in relation to how the adoption of this law and the certainty of his

the content. In terms of its individual provisions, MEPs argued

violation of citizens ' rights to health care, which is new in the sense of § 28

paragraph. 2 in conjunction with § 4, paragraph 4. 5 of the law on health services

provided only "with regard to the specific conditions and objective

options. " For being in conflict with the constitutional order but thought i

limitation of the effects of the so-called. "express wish" under § 36 odst. 3, 5 and

6, the obligation to the consent of the legal representatives with the provision of health

services to minor patients or patients largely the eligibility to

legal capacity pursuant to section 35, the definition of the rights and obligations of the providers

health services under sections 45 to 47, options for their care of a patient

pursuant to section 48, paragraph. 1 and 2, and article 50, the possibility of dealing with the native number

the patient under section 52, the adjustment of the management of the medical record referred to in section 53, and

54 and the adjustment of the position of the professional representative in accordance with section 14 of the Act on

health services. If the Constitutional Court did not find the reasons for the

annulment of the contested act as a whole, have suggested the cancellation of at least the following

the provisions.



5. the procedure for the proposal of the Group of senators was conducted under SP. zn. PL-2/12

and the design of the latter group of MPs under SP. zn. PL. ÚS 7/12.

The Constitutional Court of its resolutions of 24 November. January 2012 SP. zn. PL-2/12

and from 6 April. March 2012 SP. zn. PL. ÚS 7/12 gradually rejected the proposals

a group of Senators and a group of MPs. On the abolition of the law on health

services as a whole has already been initiated, as a result of which

According to § 35 paragraph. 2 Act No. 182/1993 Coll., on the Constitutional Court, have become both

proposals inadmissible. However, because otherwise comply with the formal requirements of

laid down by this law, received a group of Senators and MPS Group

the right to participate in the proceedings of the original proposal as his side

the participants that the proposal to repeal the law on the health services will be

the extent of the objections raised by subjected to regular review in terms of

their compliance with the constitutional order. This means that the subject of this

management was defined proposals and objections in all the above three actively

legitimised bodies.



II.



The plaintiffs ' argument and minor participants




6. In favour of the appellants and their supporting proposals raised by participants

the following argument.



II./a



Limitation of the rights of opposition MPs in the debate to the contested fourteen

the laws of the



7. The appellants have considered that, when discussing the proposals of the contested

laws was to their rapid adoption of some of the measures used

which was as a whole resulted in a violation of the constitutional principles

relating to the legislative process. Should be specifically

by:



and the President of the Chamber of Deputies) has included the draft laws, which were

rejected or returned to the Senate, on the agenda of the ongoing 25. the meeting of the

The Chamber of Deputies, against the opposition of at least 20 members. According to the

the plaintiffs moved in violation of § 97 paragraph. 3 and 4 in conjunction with the

§ 54 paragraph. the first sentence of article 4, para. 5 and 6 of law No. 90/1995 Coll., on rules

the order of the Chamber of Deputies, as amended, (hereinafter referred to as

"rules of procedure").



(b)) in the framework of their re-negotiating merged into the Chamber of Deputies

the debate to all 14 bills. At the same time was its resolution

limited speaking time for members to ten minutes and the number of their performances

in the debate on the two merged. In this case, the FRO

proponents of the rules violations, and more specifically its section, paragraph 59. 2

in conjunction with § 54 paragraph. 8 sentence first.



c) throughout their not to reconsider the management of meetings

The Chamber of Deputies accepted her Vice-President Lubomír Zaorálek,

that was at that time as the only member of the leadership of the Chamber of Deputies

the representative of the parliamentary opposition. President of the Chamber of Deputies, in the

this direction not even attempted by the agreement, which the plaintiffs be assessed as

violation of section 30 paragraph. 3 of the rules of procedure.



(d) in the case of the 11 contested) laws--specifically laws no 341/2011

Coll., 365/2011 Coll., 369/2011 Coll., 370/2011 Coll., 372/2011 Coll., 373/2011

Coll., 374/2011 Coll., 375/2011 Coll., 426/2011 Coll., 427/2011 Coll. and 428/2011

SB.-have been significantly shortened the deadline for their consideration. The time limit for

consideration of a Bill in Committee under section 91, paragraph. 1 of the rules of

the order was reduced to 20 or up to 30 days. Also has been shortened

period under section 95 paragraph. 1 of the rules of procedure, which defines the period between

delivery of amendments to members and the beginning of the third reading, on the

limit 48 hours, while in the case of law no 364/2011 Coll., amending

changing some laws in the context of austerity in the scope of

The Ministry of labour and Social Affairs, to be in conflict with

referred to the provisions of the proposal for members, and not the appellant. This

the procedure was elected despite the fact that in the resolutions of the committees on the draft

the laws were generally contained extensive and substantive amendments

including, in some cases dozens of pages of text.



e) in the case of laws relating to pension reform, i.e. Law No.

426/2011 Coll., 427/2011 Coll. and 428/2011 Coll. merger debate

in the second reading, not only after their rejection by the Senate.



8. the objective of all these measures was a rapid enforcement of Government proposals

laws on land in the Chamber of Deputies, to take effect as

soon as possible, usually to 1. January 2012. The means of achieving this

the goal, however, was that the use of the provisions of the rules of procedure, that

eliminate or at least substantially impeded the possibility of the opposition to criticize

individual bills, submit amendments to them or to

Alternatively, try taking them out. It was on oslabována

the possibility of the opposition, which already was in the informational disadvantage compared

Government members, consistently use means defending the interests and rights of the

political minorities, which she made available to the Constitution of the Czech Republic

(hereinafter referred to as "the Constitution") and the rules of procedure.



9. the constitutional principle of the rule of law and the democratic result

the minimum requirements and the quality of parliamentary debate, with

one of them is that the adoption of the laws has to occur in the form of a rational

discourse. In this context, the plaintiffs point to the conclusions of law

The Constitutional Court contained in the award of 15 July. February 2007, SP. zn. Pl. ÚS

77/06 (N 30/44 SbNU 349; 37/2007 Coll.), by which the legislative

the process to allow open debate between the proponents of competing views.

The parliamentary debate holds the legitimizing function in relation to accepted

a political decision, since in it are publicly landed

the arguments for and against, which played a role in their adoption. Its

through is then acquainted with these arguments and confronted

the public, of which about things can make their own judgment and adapt

the outcome of this debate.



10. The requirement of sufficient discussion in the legislature in connection with

the restrictions of the electoral rights of prisoners also said the European Court of

human rights in its judgment of 6 May 2003. October, 2005 in the matter of complaints about Hirst

against the United Kingdom no. 74025/01, and it can be inferred from the recent

the decision of the German Federal Constitutional Court of 9 June. February 2010

SP. zn. 1 BvL 1/09 (BVerfGE 125, 175-Hartz IV), which also puts on the

the lawmaker huge demands to their normative decision convincingly

and transparently justified. This decision was cancelled by the determination of the

subsistence level for certain groups of people, since the German legislature

the public did not submit transparent calculation, how he came to some

the amounts.



11. In his further argument the appellants summarizes some general

understanding that in relation to the legislative process, formulated by the Constitutional Court

in its findings relating to the adoption of laws in the State legislative

of an emergency. It's all about the linking of the Parliament of the law in the performance of their

scope and its obligation to respect the rules, that's like

the representative of the legislative power itself. At the same time, it

by formally request legal agricultural elementary State

which is the exclusion of the arbitrariness of the decision of the public authorities.

Failure to comply with these rules may lead not only to challenge the legitimacy of the

the adopted law, but also of its legality. Form and interpretation

necessitated the parliamentary chambers must therefore be based on the principle of

representative democracy, to the free exercise of the mandate of the members of the

Parliament, on their equality as representatives of the people, the freedom of

expression and free parliamentary debate. Must be complied with

natural law principle let hear all sides.



12. the above principles it is necessary to sort and the principle of the protection of minorities,

on the parliamentary ground represents the parliamentary opposition. Its

representatives must be in the context of legislative procedures impede

exercise their constitutionally guaranteed rights, which are not limited merely to the

the right to participate in them, but you can sort between them, and the law of allowing

the parliamentary opposition, to block or postpone the decisions to be taken

mostly. For the most serious violations of the rights of the parliamentary opposition shall be considered

the plaintiffs just merge debate to the Senate refused or returned

draft laws. The opposition members during the hearing of contested acts

meet postulátu responsible and constructive opposition, when their

the parties avoid the overuse or abuse of those rights, and thus not to

weakening or prevent the effective exercise of the powers of Government

most. Admit, that after exhausting all options, which should

the opposition is available for discussion of Government bills

on the soil of the Parliament Chambers, proceeded to obstruction characterized by

by the presentation of a more procedural proposals for changes

in the agenda, and a larger number of applications into the debate, this approach

However, it has not been maintained primarily the idea of obstruction, but the factual criticism of the

their content. The merge discussion was obviously the penalty for

that opposition has caused a two-day hearing before a different design

the law then the law (published as no. 353/2011 Coll., amending

amended Act No. 96/1993 Coll., on building savings and State aid

building savings, and the addition of the Czech National Council Act No. 586/1992

Coll., on income taxes, as amended by the Act of the Czech National Council No. 35/1993

Coll. in the wording of later regulations, and Act No. 586/1992 Coll., on income tax from

income, as amended; House print no. 378, 6. the electoral

period). The reason for this restriction, in contrast, could be time pressure on

the adoption of the contested Law, because even if their discussion took

Similarly, for a long time, the Chamber of deputies would undoubtedly is all approved

by the end of November 2011. Such time pressure, moreover, within the meaning of the award

from day 1. March 2011 SP. zn. PL. ÚS 55/10 (N 27/60 SbNU 279; 80/2011

SB.) It was not possible or otherwise be considered legitimate and constitutionally

aprobovatelný reason to limit debate.



13. In addition to the mentioned constitutional aspects cannot be ignored, nor that

to merge the debates to the 14 contested laws was in violation of section

paragraph 54. 8 of the rules of procedure, although it was based on the provisions of the

the Government most of your procedure. The appellants refer to the opinion of the

the Legislative Department of the Chamber of Deputies, which in the course of the

the meeting requested the Deputy Chairman of the Chamber of Deputies Lubomír Zaorálek.

Under this proposal, cited extensively in the opinion is merge debates

the usual only for points that together logically and factually connected (e.g. for

the proposals of the health services act, the Act on the specific health

the services and the related "change" law). This link is

the reason for the merge, since it does not make sense to have repeatedly conducted debate

to substantively almost identical or very similar things. This purpose, however,

cannot be filled in case the merge discussions for any content

unrelated laws. That opinion admits that the reason

the merge debate could be an effort to limit the number of speeches

members of the overall two performances after ten minutes, given the diction

section 59 paragraph. 2 of the rules of procedure, according to which the Chamber of Deputies may without debate

Act, that "the same matter", a member may withdraw no more than twice, the

However, even in this case had to have each Member the option to get off

twice to each case, i.e.. to each individual print, or point

the meeting.




14. To the Vice-President of the Chamber of deputies of Catherine Klasnové,

that as a management meeting vymazávala the third and other application members in

the debate, the Legislative Department of the degree, however, pointed out that the

among the commonly accepted legal principles including the prohibition of abuse of rights,

forming part of the rule of law within the meaning of article. 1 (1). 1 of the Constitution.

In accordance with this principle, you can limit the performance in certain situations

the law, which it only proven abuses, which could be

even in the case where, in the implementation of the so-called. obstruction of the viable has been exceeded

rate. If the law provided for the right of members to be always and

under all circumstances, formalistic manner exercised, it could mean

the denial of the meaning of the activities of the Chamber of deputies of the material, or parliamentarism

as such. The Legislative Department, however, does not consider that in the

to this extent, the situation occurred.



15. a proposal for the plaintiffs to justify annulment of the contested acts and

deterioration of the constitutional role of the Senate in the legislative process. The Senate of its

permission to reject the Bill or return it with the EP amendments,

proposals for fulfilling the function of korektivu the Chamber of Deputies. It is in this

the fact is the reason for which the rules of procedure requires that the

The Senate rejected or returned by the master were submitted to the nearest

a meeting of the Chamber of Deputies, i.e.. obviously not at the meeting in progress, and

for the first ten days of the Senate resolution, delivery or

the amended version. The sense of this minimum period lies in ensuring the

the time needed to ensure that MEPs could with the resolution of the Senate and its

the reasons for, and decide with full knowledge of his position. From

for these reasons, the appellants appear to limit the debate question as

disproportionate and inappropriate to the constitutional principles our parliamentarianism.

The draft law after its refusal or return with amendments already

It is not discussed in the committees, thereby substantially increases the importance of the debate

held on the plenary Chamber of Deputies. This becomes the only forum

on which MEPs use arguments in its zazněvších

the hearing in the Senate and try to convince the majority of the

the Chamber of deputies to change its opinion, where appropriate, to the approval of the Senate

the amended version of the Bill. The consequences of restricting the debate cannot be

relativize or pointing to the three already elapsed reading of the draft law,

because after the adoption of resolution of the Senate to reject or return the draft law

enter into the parliamentary discourse of his new arguments as remedies

institutions and disputing the second element to the parliamentary Chamber. In fact, the

is the sense of the two-Chamber parliamentary system.



16. In the case with the plaintiffs turn to the Constitutional Court as a

the leaders of the parliamentary opposition, that due to the serious doubts about the

the constitutionality of the decision of the parliamentary majority opened the way to discuss

things by the Constitutional Court, and thus also to the migration issues to

the constitutional discourse, which is for the contemporary democratic legal State

substantial. They are convinced that, with the exception of the Senate, have failed in the case of

the contested law other fuses constitutionally consistent performance

the legislative process, which even the President of the Constitutional Court

The Chamber of Deputies, or the President, and the President of the meeting of the

of the Republic. In the case of violation of the rules constitute a democratic

the legislative process, i.e.. Merge to debate unrelated proposals

the law, did not want to intervene, while the Senate due to the fact that the

the merge was only after refusal or return of the masters, has already

He could not intervene. To summarize, the adoption of the contested acts occurred

intervention in the rights, principles and guarantees laid down in the article. 1 (1). 1, article. 2

paragraph. 3, article. 5, 6, 15, 26 and 36 of the Constitution and in article. 4 (4). 2 and 4, article. 21

paragraph. 1 and 4, and article. 22 of the Charter of fundamental rights and freedoms (hereinafter referred to as

"The Charter"). Cumulation of measures restricting democratic debate on land

The Chamber of Deputies, in particular reducing the time limits for dealing with infected

laws, limiting the speaking time limits and number of performances, and finally

by merging the House debate after Senate proposals contested laws

rejected or returned with amendments, there was an interference with the rights of the family

Members (especially opposition) who did not have the opportunity against the proposals

These laws argue in a parliamentary debate. It was the

an extreme case of arbitrariness of Government most. The laws, which are not

trivially restrict the fundamental rights and freedoms referred to in article. 26, 28, 30, 31, and

article. paragraph 32. 5 of the Charter, Parliament totally failed in its constitutional

legitimizing role instance.



17. the way of hearing of contested acts indicate the proponents for the

the manifestation of the continued trend towards marginalisation of Parliament and

the parliamentary debate, which resulted in the past in connection with the

discussing the Act No. 261/2007 Coll. on the stabilization of public budgets,

or the adoption of laws in the State of legislative emergency in November 2010.

Her other manifestations may include (i) a common abstention by a Government of the majority

during the parliamentary debates to relevant topics or treating each

criticism of the Government for the delay and obstruction of the masters. The result of this

the tendency is that the Parliament becomes a mere voting machine,

a façade.



II./b



Arbitrary procedure for the approval of the law on health services in the

The Chamber of Deputies



18. The incorrect procedure for the adoption of the draft law, but this time only

in the case of a draft law on health services, complains Of

the House Group, which has members in the position of the next

participant. The reason is mainly the fact that was not reflected in the importance

This law, which has the character and content of the code defines a new

terminology, basic conditions for the provision of health services,

the position of the State, providers of health services and the patient and their

relationships. Due to its content it was therefore appropriate to expect that its

consultation occurs in the proper time frame, and, if possible, when

achieve broader consensus on its contents, including next to the Coalition

at least part of the parliamentary opposition, in order to maintain the continuity of this

laws and other elections. However, this did not occur.



19. Approval was by the side of the participants completely outside the framework of

the rules of procedure and practices of the hearing. About hasn't just merge

debate to unrelated bills, which accompanied the series night

the negotiations, but also the fact previous this debate. As for example. about

that proposal was circulated to members of the law 1. July

2011 in the holiday season, and that without this the time to

a draft amendment to Act No. 48/1997 Coll., on public health

insurance and amending and supplementing certain related laws, as amended by

amended, (hereinafter the "law on public health

insurance "), which with this Act after the material closely related page. The

was put into question when in October, and it originally only

on 10 days later at 20 days, while the internal comments

control to the amendment to Act No. 258/2000 Coll., on the protection of public health and the

changes to some related laws, as amended.

The following short deadlines make it impossible the application of qualified comments from

Party of the professional public, even if it is a code of conduct with regard to the extensive

the field of human rights. Most of the comments and objections raised professional

In addition, a draft law to the public was not at all accepted. In this

procedure see the secondary elements of arbitrariness and participants in their wake

violation of article. 1 (1). 1, article. 2 (2). 3, article. 23 paragraph. 3 and article. paragraph 44. 3

Of the Constitution.



20. The subject of their objections is the fact that finally the adoption

the draft law is not without the so-called. přílepků, if it were included

for example. the passages about the installation of the leadership of the general health insurance company or

the adjustment system of making payments and prices of medicines and food for

Special medical purposes on the regulation of drug prices. Such a procedure is not in

accordance with legislative rules of the Government, nor even with the case law of the constitutional

the Court specifically finding SP. zn. PL. ÚS 77/06.



II./c



Violations of the prohibition of forced labour and some of the other fundamental rights in the

as a result of making the right to unemployment benefits of public power

services



21. By the contested Act No. 366/2011 Coll., amending Act No 111/2006

Coll. on assistance in material need, as amended, law No.

108/2006 Coll., on social services, in wording of later regulations,

Act No. 117/1995 Coll., on State social assistance, as amended

regulations, and other related laws, was with effect from 1. January 2012

amended legislation, the Institute of the public service pursuant to section 18a, paragraph. 1

Bill on assistance in material need. The Institute in question, which was to

the legal system introduced with effect from 1. January 2009, originally followed the

the purpose of motivating the recipient benefits, assistance in material need, to get your

Active activities increased contribution to the living. The fact remains

the performance of a public service in a minimum of 20 hours per month, with

the increase could be achieved and performance of working activities or performance

volunteer services. New legislation brought about fundamental changes to this

of the Institute. The public service is no longer carried out only by persons in the material

need, but also the persons in the register of job applicants, and

on the basis of a written contract, containing in addition to basic information about

These people also place, subject and time of performance of the public service. This

the contract is concluded with the regional branch of the Labour Office of the Czech Republic

(hereinafter "the Office"), in agreement with the municipality or other entity, in the

the benefit is to be provided, and it does not belong.

The other conditions of the performance of the public service are similar to those

employment.



22. The same day effect and related supplement section 30 paragraph. 2

the law on employment. According to the new wording of point (d)) of this provision

the regional branch office, work is entitled to and shall be obliged to exclude the filing of

job seekers of such applicants, who without serious reason

refuses an offer to perform the public service in the range not exceeding 20 hours


a week in the case, that is in this register is maintained continuously for more than 2

of the month.



23. The appellants have considered that both the contested provisions are contrary

with the right to freely choose employment and the prohibition of forced labour. For the first time

the said right is enshrined in the article. 23 paragraph. 1 General Declaration

the human rights article. 6 (1). 1 of the International Covenant on economic,

social and cultural rights, declared under no. 120/1976 Coll., and article.

6 (1). 1 the Declaration of the UN General Assembly on the progress and development in the

social field from 1969, as well as in the article. 1 (1). 1 the European social

the Charter, proclaimed under no 14/2000 Sb. m. s., and article. 1 (1). 1 the Convention on the

employment policy Convention [International Labour Organization (hereinafter also

just a "MOP") No. 122] famous under no 490/1990 Coll. of the Czech

Republic under obligations to the aim of their policy option

each have the opportunity to obtain resources for their living,

you have the freedom to choose. As regards the prohibition of forced labour, the

provide for a particular article. 9 of the Charter and article. 4 to the Convention for the protection of human

rights and fundamental freedoms (hereinafter referred to as "the Convention"), which is at the same time

defined, what cannot be regarded as forced labour. Her positive definition

on the contrary, located in the Convention on forced or compulsory labour (ILO Convention No.

29), the famous No. 506/1990 Coll., for whose purpose, according to its article.

2 (2). 1 indicates that the term "forced or compulsory labour" any work or

the service, to any person enforced under threat of any

punishment and that stated a person offered voluntarily. According to the

plaintiffs need to understand any injury penalty, which would

concerned the deprivation or limitation of any of the rights or freedoms of the person concerned,

While the ban applies to both public authorities and private

bodies. In the article. 2 (2). 2 this Convention are set out exceptions to that

This prohibition does not apply.



24. Namítaný conflict is primarily concerned that the law on assistance § 18a

among the material need to include public works and help other bodies than the

municipalities. You can thus be carried out for the benefit of the State, territorial

authorities, non-profit organizations, or even

business entities. Such a definition is, however, according to the plaintiffs '

problematic. The public service should be exercised in the public interest,

i.e.. for the benefit of the wider circle of persons, to the charitable or humanitarian

purposes, but not for profit business entities. This

corresponds to the article. 2 (2). 2 (a). e) of the Convention on forced or compulsory labour,

that as an exception to the prohibition of forced labour admits smaller municipal

services performed by members of the community in the direct interest, if they can be

considered as normal civic obligations incumbent upon the members of the community and

These or their direct representatives shall have the right to express his views on the need

of such services. It is clear that these conditions the performance of public service obligations in

benefit of a private company does not meet. The contested provisions are of

for this reason, at the same time, in an apparent breach of article. 4 (4). 1 the Convention on the

forced or compulsory labour and article. 4 (4). 3 (b). (d)) of the Convention. If the to

It takes into account the fact that the law does not provide for any limit

for the duration of the performance of public services, it can be concluded that the reasoning

Office work in mediation is not limited, and it is therefore

must be the fear of possible abuses of this Institute of business

purposes. But it cannot be ruled out, nor its misuse for the purposes of economic

development, including assistance in the areas of improving the environment,

where appropriate, as a means of discipline, although the use of forced or

compulsory labour for those purposes are prohibited by article. 1 (a). (b)), and (c)), the Convention on the

Elimination of forced labour (ILO Convention No. 105), the renowned No. 231/1998

SB.



25. The disposal of the registration of job seekers also has a penalty

the character to which it is linked to a number of other negative consequences. As to the

the withdrawal of unemployment benefits and aid for retraining, the emergence of

the obligation to pay insurance premiums on health insurance and

failure to provide benefits assistance in material need. The law assumes that the performance

the public service has the character of a performance-dependent activities in accordance with

labour legislation, which the plaintiffs show listing

individual aspects of legislation. The penalties referred to above therefore

operates, or a job-seeker it perceives as to use it for the case

that the performance of the public service has declined, the result of which is to exercise

forced to. This conclusion corresponds to the way the threat in the context of the

the prohibition of forced labour is perceived, the European Court of human rights, such as

any hefty penalty (i.e. a sentence in the area of criminal law and

administrative punishment) or other noticeable intervention in the legal realm of the concerned

of the person. Also, the authorities of the International Labour Organization in its opinions

Note that recourse can also have the form of a loss of rights or benefits.

Nedobrovolnost, as the appellants further States, it assumes infringement

the will of the person concerned, and any formally granted consent must be

examine according to the circumstances, whether the person concerned is given freely, and

not under the threat of a punishment illegal. The Constitutional Court itself in the past

the character of compulsion was adopted as the compulsion to work, which is

"administrative nature", "with the threat of sanctions resulting from the ratio of the

superiority and subordination ", and that in situations of the type-comparable with the

the negative listing of what prohibited forced labour within the meaning of article. 9

paragraph. 2 of the Charter is not [cf. find dated March 22, 1994, SP. zn. Pl. ÚS

37/93 (N 9/1 SbNU 61; 86/1994 Coll.); find of the day 7. July 1994 sp.

Zn. I-2/93 (N 37/1 SbNU 267)]. All of these characters are valid legal

the definition of the public service.



26. The case-law of the European Court of human rights and of the Constitutional Court

requires an assessment of the burden of tíživosti's objective in the performance of the compulsory

work or services, i.e., for the person concerned. whether it is obvious

the injustice, oppression, or unnecessary, unreasonable hardness or

the torment. In accordance with article. 4 of the Convention, as well as the legal conclusions contained in

recitals 33 and 37 of the judgment of the European Court of human rights of 23 July.

November 1983 in complaint against Belgium, Van der Mussele No.

8918/80, it is therefore necessary to assess the proportionality of the measures taken.

With respect to the burden of negligible or normal, thus causing the mandatory

the person of zero, negligible. completely standard and normal damage can be

with the use of a variation on the argument of the de minimis aprobovat the work which would

otherwise, all the other characters prohibited forced labour. If you would

However, on the contrary, it was the burden of extremely difficult and unbearable, you may

the voluntary assumption of the obligation to be questioned such work

to exercise. These starting points are applied according to the plaintiffs in the case.

Taking into account that the performance of the public service may be ordered to

half of the fixed weekly working time, that is. 20 hours, while for

the performance of this work is not working in any way rewarded, you can judge that

the burden of performing this service for it can be very difficult, because

the performance of his work does not receive adequate remuneration. In the course of performance of public

In addition, the service, the person concerned is insured by the důchodově, which can considerably

negatively reflected on her position in subsequent decisions about her

the pension levy, in particular when deciding on a disability pension.



27. Another objection concerns the violation of the contested legislation with the law on

adequate physical security in unemployment, according to the article. 26 paragraph. 3

The Charter, which constitutes one of the essential aspects of the right to work,

How is regulated in a number of international instruments, including the international

treaties on human rights and fundamental freedoms. These contracts are stored

The Czech Republic to provide unemployment benefits. As to the

The Convention on the minimum standard of social security (ILO Convention No. 102),

the famous No. 461/1991 Coll., and the European code of social

Security (Council of Europe Convention No. 48), promulgated under Act No. 90/2001 Coll., m.

s., which define the concept of indoor social events and define the circuit

protected persons and for the provision of benefits. Referred to by the term includes

their article. 20 stop of earnings, as defined by the national

the legislation caused by the inability to obtain adequate or appropriate

If the protected person is able to work and ready to work.

The provision of unemployment benefits may be limited in accordance with these agreements

only two reasons that these Treaty lays down in its article exhaustively.

24 paragraph. 1. The reason as defined in the contested provisions of § 30 paragraph. 2 (a). (d))

the law on employment, however, cannot be classified under them.



28. Refusal to perform the public service will have for the person who has not yet

he receives unemployment benefits, resulted in its withdrawal. This support

It is a dose of social security, whose provision is subject to the

the previous recruitment premiums from gainful employment. The person

performing a gainful activity through these levies so

shall cover the insurance for the case of a negative social events, which

is unemployment. Whereas the aid in

unemployment is established on the insurance principle, should a person who

doing after a fixed period, premiums, insured during

the indemnity on the basis of events in advance of the conditions laid down by law

lacking the element of randomness. In the case of persons to whom the Office of the

the work offered a public service, but additional support

unemployment happens after two months of conditional registration just

the performance of public services, without it being possible to determine in advance whether and when

This offer they get, what work will be subject to the public service and what

will have the scope and length of duration. After two months as to the legal

the conditions for the grant of unemployment benefits, more

depends only on the discretionary power of the regional branches of the Office work, on which the given

to a wide extent discretion does not change nor the possibility to appeal

resource. Not to be overlooked, nor access to the Ministry of labour and

Social Affairs, according to which job applicants must "work"

unemployment benefit paid from "pockets of all of us," which completely


overlooked that these persons already in the performance of their employment apply

on possible future unemployment benefit. For the vast majority of

self-employed persons will in the course of their working lives to the

levy significantly higher amounts than is paid to them in this form. Some

candidates typically graduates from middle and high schools, which

the contested provisions also affect, in addition, receive only the amount

health insurance premiums, which last year amounted to

723 CZK per month.



29. the appellants do not identify nor any other argument presented

the Ministry, which is a public service offered to people in the long term

unemployed, i.e.. more than one year. Long-term unemployment is

Indeed, associated with several typical groups, which is available from the

statistical monitoring. Either as to the persons who are losing their job

the affected more than others (e.g., persons with disabilities, persons in the

higher working-age population, or parents of small children), or people that are

actually work. Penalty disposal persons sufficiently

were aiming to find a job, while even the existing legal

Edit. In the case of thorough checks on those target groups that would

records of abuse, so there were tools for disability of such

the negotiations. The new legislation already but not associate Institute of public service

only with the long-term unemployed and persons dependent on the doses

assistance in material need, but only and only with the registration of candidates

on the job, and it in length of only two months, that is. with short-term

unemployment.



30. public service was originally one of the aktivizačních elements in the system

assistance in material need, IE. was part of the support necessary to ensure the

basic living conditions as enshrined in article. 30 paragraph. 2 of the Charter. Its

the main goal was to maintain or restore the working habits of the person,

that has long been in material need. As a result of the

the changes, however, this Institute became part of the legal definition of the right to

adequate physical security in unemployment within the meaning of article. 26 paragraph. 3

and the article. paragraph 41. 1 of the Charter. These provisions of the diction is beyond doubt

that "reasonable physical security" guarantees a much higher level of protection

than to "ensure the basic living conditions". Valid legislation

but these two categories of constitutional rights or mixes. The right to adequate

physical security is in a basically negováno moving on

the level of provision of basic living conditions, which is the implementation of another

social rights. Job seekers who receive support in

unemployment, on the basis of the above, can perceive the public offer

services such as a noticeable interference in their right to human dignity in

the meaning of the article. 1 and article. 10, paragraph 1. 1 of the Charter.



31. Finally, the applicants argue that the contested provisions are contrary

with the right to equitable remuneration provided for in article. 28 of the Charter, since the

the range of performance of the public service may be up to 20 hours a week, without

for the person performing the services received the reward. The inconsistency in the end

See also the law on assistance in material need according to the article. 30 paragraph. 2

Of the Charter. The fact that the person refuses to perform the public service

causes in the following six months after the Elimination of the registration

applicants for employment is not pursuant to § 3 of the law No 111/2006 Coll. on assistance in the

material need, as amended, (hereinafter as "the Act of

assistance in material need ") is considered a person of material need, and therefore does not

entitlement to the benefits of assistance in material need, even if the other

conditions for granting met. For many of the unemployed, therefore,

seriously threatens their significant debt or social exclusion.

The appellants pronounced doubts whether it would reject the exercise of public

services should be grounds for removal from the register of job seekers,

or for it to become a withdrawn person, which is in fact located in the material

emergency, the right to assistance to ensure their basic living conditions.

The provisions of section 3 (3). 3 of the Act on assistance in material need, while giving the County

Branch Office work in justified cases, the option to consider and

such a person for a person in material need, but such recognition

does not have a legal claim.



32. From all these reasons considered the appellants challenged the provisions of the

for being in breach of article. 1, article. 9, article. 10, paragraph 1. 1, article. 26 paragraph. 3 and

article. 30 paragraph. 2 in conjunction with article. paragraph 41. 1 and article. 4 (4). 4 of the Charter,

as well as the aforementioned provisions of the International Covenants on human

rights and fundamental freedoms.



II./d



The unacceptability of the retroactive effect of the obligation of the new registration

the providers of health services



33. The appellants will eventually seek the annulment of the transitional provisions of section

paragraph 121. 1 and 5 of the Act on health services, providing for the obligation to

new registration of operators of non-State health establishments under

the existing law No. 160/1992 Coll., on health care in non-State

medical devices, as amended.



34. By way of introduction to his argument, recognize that the legislature has the right to determine

new, even more stringent conditions for the pursuit of business activities

and at the same time the law to save those who this business

to perform the following conditions to certain statutory time limits

have met. Any non-compliance would could be a reason for withdrawal

business permission in the relevant proceedings. However, do not identify with the

the solution, according to which the business ceases to be natural or legal person

the current permissions of the Act, i.e., without any administrative proceedings,

without any of the newly set did not fulfil the conditions.



35. According to the contested provisions, operators of non-State

medical device to operate the business, to which the

certified on the basis of the existing legislation, only 36 months

from the entry into force of the Act on the health services. To these

provide services even after the expiry of that period, shall, within 9 months from the entry into

the effectiveness of this law may submit a request for a new permission to provide

health services, with the result that must again submit once

presented evidence of his professional competence to practise the profession, the

conditions for material and technical equipment of the medical equipment

or for approval once the approved operational regulations of the medical

establishment by the competent authority to protect public health. It must also

Once again demonstrate his integrity, medical fitness and permissions

enjoy the premises where they provide health services.



36. the effects of the contested provisions may be in some cases

much more serious than a mere "completely unnecessary" administrative harassment

existing operators of non-State health establishments. This

the fact the appellants demonstrate on the example of the doctor's operating

a private medical practice, which earned the registration of non-State

medical equipment on the basis that he graduated from the attestation of the second

degree, therefore his time trial qualifying for the performance of functions into

for example. in the field of internal medicine. The administrative authority decided to legitimately and in

accordance with the then applicable law to the conclusion that this

the qualifications entitles this doctor perform a private medical

practice in the field of Cardiology, even if the doctor had in this field

the former set top attestation, but only the second instance of the attestation

the field of internal medicine. It is widely known, and it is clear from

qualification programmes of the time, that a doctor with the attestation of the second degree

He had to handle all the follow-up of internal medicine (including scopes

Cardiology) in the same range, as if from these disciplines graduated from

set top attestation. Currently, however, under the new laws,

legislation, inter alia. Act No. 95/2004 Coll., on conditions for the acquisition and recognition

professional competence and specialized competence to perform

the medical professions of doctor, dentist and pharmacist, as amended by

amended, (hereinafter "Law No 95/2004 Coll."), is the branch of

Cardiology separate basic scope. A private doctor, who will

newly apply for permission to provide health services in the field of

Cardiology, therefore will not meet the newly established qualifying

the preconditions for the exercise of the profession in this field, as it will not be called.

specialized competence in the field of Cardiology by the latter

of the Act. May go to a private doctor, who is a very

an experienced and long years of private practice, successfully performs to the satisfaction

their patients both in the field of internal medicine and in the field

Cardiology, and on the basis of the now repealed attestation in the second stage of the

internal medicine, without, in the past he set top specialist

the field of cardiology. Her additional passing within 36 months

may be for older private doctor tremendously difficult, because

the qualification and the training program for specialized training in the field of

Cardiology, as well as from other medical specialties, atestačních

requires not only the composition of the test before the Commission, but also passing

internships in clinics and other higher in scale series

months. For this purpose, would undoubtedly have had to interrupt their long term

practice.



37. From the above it is obvious according to the plaintiffs, that the retroactive

intervention in the previously acquired rights of such a private doctor. Similar to the

While the situation occurs in other medical fields, when, on the basis

attestation in the second degree was awarded to non-governmental registration

medical equipment for the nástavbový and now the base originally medical

the scope, which, however, is not enough to meet the new conditions already operating

private medical practice in the relevant expertise. The doctor concerned so

shall cease its permissions only on the basis of changes in the law, without

However guilty. For these reasons, the impugned provisions infringe the

the essence of the rights enshrined in article on the business. 26 paragraph. 1 of the Charter and

represent illegal retroactive interference has already acquired rights,

contrary to the principle of legal certainty, which is part of the concept of

democratic State in accordance with article. 1 (1). 1 of the Constitution.




38. The objection to the contested act transitional provisions

health services, which at the same time concluding arguments, the plaintiffs

have been with the same reasoning applied by a group of senators, in

This control position of the intervention.



II./e



A vague purpose of the new legislation the national health information

system and the unacceptability of the extent of the personal data disclosed on the

medical workers



39. the Group also proposes to repeal the provisions of the Senators of the § 70 to 78 of the law

of health services, which include a new National legislation

health information system. In comparison with the still valid legal

(i.e. primarily § 67c to 67i Act No. 20/1966 Coll., on the care of

the health of the people, as amended, and Regulation No. 552/2004 Coll.

on the transmission of personal and other data to the national health

the information system for the needs of the management of the national health registries)

This database does not constitute a mere link still existing

registers, which are specified by law and limited purposes, but

allows the transmission of data for other purposes. There is, however, already established as

database should be technically created nor how and when they are to be

encoded in it data and which of them are to be made anonymous.

The purpose of this database, as defined in section 70 paragraph. 1 of the law on the health

services, is also very general, vague and all-encompassing. In no way does not limit

its future form and use, thus the contested adjustment to

conflict not only with the European Parliament and Council Directive 95/46/EC of the European

24 October 1995 on the protection of individuals with regard to the processing of

personal data and on the free movement of such data (hereinafter ' directive

The European Parliament and of the Council 95/46/EC "), which may be of such

data is collected only for specified and explicit purposes, but

also with the article. 10, paragraph 1. 3 of the Charter and article. 10, paragraph 1. 1 of the Convention on the protection of

human rights and the dignity of human beings in the context of the application

Biology and medicine: Convention on human rights and Biomedicine, the renowned

under no 96/2001 Coll. m. s., (hereinafter referred to as the ' Convention on human rights and

Biomedicine ").



40. A part of the national health information system is under section

paragraph 72. 1 (a). (d)) of the law on health services and the national registry

health care workers. As is clear from section 76 of this Act, this

the registry contains structured information on medical workers

including visiting of persons and the persons eligibility for performance

the medical profession have gained outside the territory of the Czech Republic. It is a native

number, address of residence, date and place of obtaining professional or

specialized competence or special professional competence, information about

commencement, interruption or termination of the medical profession and

information about the loss of permission to exercise the medical profession, as well as on the

the loss of health, loss of integrity and the length of the period for

that is the performance of the activities of the disabled. With the exception of the data on birth and

the address of the place of residence of this registry is to be publicly available on the

the website of the Ministry of health.



41. thus defined the scope of published data fro the side

participants of the non-compliance of the latter provision, the meaning and purpose of

article. 10, paragraph 1. 3 of the Charter, according to which everyone has the right to protection against

unauthorized gathering, publication or other misuse of data

about his person, as well as with the law on protection from zasahováním to the private

life in the meaning of article. 10, paragraph 1. 2 of the Charter. They consider that there is no

the reason for that is to be guided by this list of all the medical

workers in the Czech Republic, including some discrete personal

of the data. In the case of physicians, dentists and pharmacists are duplicate

the lists already exist and their chambers of Commerce pursuant to section 6a of paragraph 1. 9 of Act No.

220/1991 Coll., on the Czech Medical Chamber, the Czech dental Chamber and

The Czech Chamber of pharmacists, as amended, (hereinafter referred to as "the law

No 220/1991 Coll.). These public lists but do not contain some serious

personal information about registered persons, for example. information on the health

eligibility, health or interrupt the performance of medical

the occupation, which will have to be newly also published, which can be

be regarded as inadmissible and nedůvodný intervention into the privacy of citizens

carrying out the medical profession.



42. by the participants in its arguments refer both to

the Director of the Legal Department of the Office for personal data protection (hereinafter also

"the Office") from November 2011, according to which the (then still only

the proposed legislation is not Conformal) with the law of the European Union or

standard privacy legislation in the countries of the European

the Union. Keeping the duplicate public list of physicians, dentists and

pharmacists according to him is contrary to the principle that has to be guided by some public

the list of persons, should be conducted only once in a single location. For

the situation, when the lists are kept of medical workers

each of the Chambers of Commerce, therefore he national register of non-medical

health care workers, i.e., the persons referred to in law No 96/2004 Coll.

on the conditions for obtaining and recognition of eligibility for the performance of non-medical

the medical profession and to the performance of the activities related to the

the provision of health care and some related laws

(the law on the paramedical professions), as amended

regulations. According to the draft of the law was not about health

services with the Authority discussed. He argued, while unsubstantiated duplicate

and a serious interference in the privacy of the individuals that are formed on the basis of the

the management of the registry.



II./f



Uncertainty and the incongruity of the delimitation of administrative offences in the area of

the provision of health services and the inadequacy of the amount of the penalties for their

committing



43. In another part of its proposal, Senators seek the annulment of certain

the provisions of the law on health services, which define the factual

the nature of administrative offences. It's all about the administrative offence under section 117

paragraph. 3 (b). (d) the health services) of the Act, which commits

provider of health services, that the breach of an obligation of confidentiality

According to § 51 of this Act, and for which a fine may be imposed to 1

0000 0000 Czk. Secondary participants fro the unconstitutionality of the contested

the provisions referred to in the adequacy of the sanctions, which justify the

the fact that this administrative tort must be due to the fact

the essence of section 180 of the Criminal Code relate to the less serious cases

violations of the mandatory secrecy of health care workers. However, it also

pointing to the vagueness of many of the provisions of the law on health services,

which medical worker often puts before the legal interpretation issues

When is obliged to maintain confidentiality, and when on the contrary provide information.

This applies, for example, the provisions of § 33 paragraph. 3. In a situation where it is

for the patient, having regard to their health status cannot determine a person

having a right to information about his current state of health and the acquisition

extracts and copies of medical documentation kept by the patient, is for

provider of health services and its individual health

staff extremely difficult to assess who is and who is not a person

close to the patient, or to verify this information. On the one hand, it is

so shall the following information under the sanctions of the lodge, on the other hand, however, is

a person must not submit to it. In particular, in cases when someone

seeks information on the basis that the injury suffered by the patient is feeling,

the law as detrimental to your own, for example. from the title, a friend, or

the like, which are usually highly emotionally tense, may

the fact that some of the information are given to the person, which would later be shown,

that person was not close. Only sanctions need to be located in the middle of the

the legal margin (i.e. 500 USD), therefore, was undoubtedly a completely

manifestly unreasonable.



44. by the participants but to point out in this context also to § 51 paragraph.

2 (a). (d)) of the law on health services, which is a violation of

secrecy does not consider the disclosure of information or other evidence for

the purpose of criminal proceedings, in the manner prescribed by the legislation of

governing criminal procedure. Opinions on the interpretation of this provision,

out of kilter. According to one opinion, everyone is required to disclose on request

authorities active in criminal proceedings, the fact that they ask, even without

the consent of the patient, even cases not subject to the notification

obligations or duties thwart crime. But there is also the view of

different according to which this information could not be without other prosecuting authorities

criminal proceedings, as referred to in the special provisions of section 8 (2). 5

the criminal procedure code the information can be made only with the consent of the judge.

Medical worker so there is a risk in the event of unjustified failure to

a fine of up to 50 000 information from the Authority participating in criminal proceedings,

If, however, applied different legal interpretation and to pass these

the data would for example. The police of the Czech Republic without the consent of the judge,

threatened by the providers of health services the fine to 1 0000 0000 Czk.

Given the vaguely and vague provisions of the law is very formulovanému

dangerous to establish as follows strictly the sanctions for infringements, and it

especially in situations where the worker is often at best will can

Act, in order to avoid danger, always have some information

unduly, or vice versa, although is does not provide.



45. the adequacy of the level of sanctions applied by the objection of the minor participants and

in relation to other administrative deliktům, which can happen

the providers of health services. As to the provision of health services

the patient without his consent under section 117, paragraph. 1 (a). n) of the Act of

health services, for which a fine may be imposed to 500 000

CZK. Secondary participants point out that it is very difficult to decide

whether a situation, when you can provide health services to the citizen and

without his consent, and when even this situation. May, with the

unclear and confusing cases occur, e.g.. When a person namely threatens


themselves or their surroundings, but not "immediately", or when

the Medic has considered the need to provide urgent care

minor necessary to save the life and health, regardless of the

the opinion of the legal representative, and, finally, is the court case evaluates to

otherwise.



46. For the violation of the obligation to keep or preserve health

documentation or dispose of the medical documentation referred to in the provisions

§ 53 paragraph. 1, neumožnění access to medical records by

the provisions of § 64 paragraph. 1 and the inspection of it pursuant to the provisions of section 65,

to allow access to medical records in violation of the provisions of section

65 and nepořízení extract or copy of the medical records in accordance with

the provisions of section 66 paragraph. 1 or 2 for administrative offences pursuant to section 117

paragraph. 3 (b). (e)), f), (g)), h) and (i)), the law on health services, there is a

provider of health services to the fine in the amount of 500 000 Czk. According to the

the plaintiffs are here getting the provider of health services in the same

difficult situation, as in the case of the risk of penalties for violations of the mandatory

confidentiality agreement. This applies especially when the question of who is and who is not

a person close to the patient, or who is under the high penalties shall be obliged to

make health documentation and edit the copy and to the contrary,

meet the not, sometimes is very difficult to assess.



47. As regards the failure to comply with the notification obligation, failure to disclose information

and unsecured transmission of copies of medical documentation or statement of

medical records to another health service provider, i.e.,

administrative offenses under section 117, paragraph. 1 (a). (e)), f) and (g)) of the law on

health services, some patients do not ever registering

practitioner and is not even established the legal obligation

the registering of the medical practitioner. For this reason, it is often for the

outpatient specialist quite complex to ensure a legal obligation

to pass information about the patient registrujícímu health providers

services. For failure to comply with these obligations, however, threatens penalties of up to

300 000 Czk. In the case of failure to provide the body of the deceased in accordance with the provisions of section 84

paragraph. 2 (a). and), c) and (d)), which is the administrative offence within the meaning of the provisions of section

paragraph 117. 3 (b). m), again is a problem for the registering of the General

practitioner fulfil his obligation under the situation when it is forced to

in particular to ensure the care of patients who had to be treated in the

his medical facility, and eventually to ensure the visitors service at

patients who with regard to their health status may not come into

medical equipment. All of these cases, care for living persons should

should have precedence over the situations, when registering a practical

doctor adult carry out an inspection and examination of the body of the deceased. If you would

Therefore, the obligation to fulfil, the penalties in the amount of 300 000 CZK

seems like a completely disproportionate, while penalties in the amount of Czk 100 000 would only

for normal private practitioner a very palpable.



48. The objection of the adequacy of the sanctions finally side participants applied

even in relation to administrative deliktům under the provisions of § 117 paragraph. 1 (a).

r) and § 114, paragraph. 1 (a). (g)), to which the provider commits neopatřením

medical devices designation under section 45, paragraph. 2 (a). (d)) of the law on

health services or nepředáním data to the national health

information system, for which there is a risk in the first case, the penalties in the amount of 200

USD and the second up to 100 000 Czk.



49. by the participants are of the opinion that the impugned provisions are not in the

accordance with the rules of proportionality and effectiveness, according to the article. 4 (4). 1 and 4

Of the Charter. Are you aware that it is not the role of the Constitutional Court

review the amount of the individual sanctions for administrative offences

or offenses, as well as the fact that the law provides only for the top border

those sanctions, and to determine the appropriate amount of the sanctions, in particular

If such an offense will be the administrative discretion. The Constitutional Court

should, however, consider very high penalties looming for providers

health services for the offenses, for which the rule behavior is not law

set out clearly and allows several possible interpretations of the law. From this

because the secondary the participants propose the relevant provisions

the Act repealed, arguing that lawmakers will be established for the determination of

proportionate sanctions and specification of rules of behavior for the violation of

sanctions can be imposed.



II./g



Restrictions on the right of citizens to health care and freedom of patients to make decisions about

custom rights



50. the last circuit of the opposition in relation to the law on health services,

governing the Constitutional Court dealt with in this proceeding, in its proposal, applied the

a group of members of Parliament, which it has the status of the intervention. Introduction

its proposal, MEPs argue that the Act can be affected by its

explanatory memorandum to the act characterized as a kodexového type, containing

General arrangements for the provision of health services, for which reason the adoption of the

was the fact that the present adaptation guarantee equality of conditions

the operation of health facilities for all subjects, did not allow

effective penalties in case of violations of the legal obligations in the operation of

medical equipment, was incomplete and factually and legally taken and to

it completely neglected the quality and safety of health care provided

as a basic requirement of the State imposed on the operator of health-care

the device. Despite the objectives pursued are considered minor participants in the new

under the existing legislation in conflict with the Constitution, the Charter and a number of

international treaties. The patient is in her as a result of becoming the only

the passive participant with limited rights to decide that care, in

What equipment and at what level should be provided for him.



51. As regards the specific shortcomings of the contested act, the newly regulates the

health services, and not yet used the health care to which the

cite the Constitution and the Charter. That in itself constitutes a violation of

constitutional standards. According to § 28 paragraph. 2 of the law on health services is

the patient, guaranteed the right to the provision of health services to the appropriate

level of expertise, which, in its section 4, paragraph 4. 5 means "provision

health services according to the rules of science and recognized medical

procedures, while respecting the individuality of the patient, having regard to the

the specific conditions and objective options. " The effect of this change is

According to the restriction of the rights of the participants in the side of the patient's care

provided under section 11 (2). 1 of Act No. 20/1966 Coll., on health care

the people, as amended, (hereinafter as the "law on the care of

the health of the people ") in accordance with current medical knowledge available

Science, as well as reduce the confidence of the patient to the doctors and to the level of their

of the services provided. Also to reduce the legal certainty

patients that are treated properly and the best, as in the health sector in the

of the 21st century. The treatment the patient should always be based on the current

scientific knowledge, however, if the law allows you to provide health

services with "the light of the specific conditions and objective options",

aprobuje "treatment" and insufficiently staffed and equipped in terms of and

under-funded entities. The patient is doing against such a procedure

He can't defend.



52. This provision is also inconsistent with the article. 4 Convention on human

rights and Biomedicine, which States the obligation to ensure that the

any intervention in the health field will be in accordance with the relevant

professional obligations and standards. This Convention in its article. 24 also

regulates the right of persons who have been harmed, on the fair compensation,

that, however, the new legislation with reference to the "specific conditions and

objective options "for the appropriate device.



53. the Government is instead to comprehensively and on the basis of a negotiated

the political consensus and after consultation with experts to systematically address

long-term problems in health care, trying to reduce the quality (and thus

at the same time and price) of the care provided. Its content violates article. 31

Of the Charter, according to which everyone has the right to health protection and the free

health care. If so dramatically increases the participation of patients on

treatment and health care facilities in drawing public and

international subsidies have competed in an effort to better and more modern treatment,

then all the citizens must be could. The provisions of § 45 to 47 of the law on

health services but no obligation to treat the patient as best as possible and

It does not address in a timely manner.



54. the right of citizens to freely decide about their rights, health and

future life Act adjustment according to § 36 odst. 5 of the law on health

services. This provision is introduced the long-awaited Institute

"express wish", which allows the patient to make decisions about

what medical interventions wishes or does not wish to undergo in the future

in case, when the later will not be able to decide himself.

That provision (by participants here had in mind probably

§ 36 odst. 3 of the law on health services), however, restricts his wish

only 5 years old, which is against the purpose of the Institute. For example, the people

suffering from Alzheimer's disease, the ability to rationally consider

over time, completely disappearing. Just right for them may have previously expressed

desire sense, with regard to the duration of the illness, however, ultimately may not be

respected.



55. the participants also considered dubious secondary legislation contained in the

§ 36 odst. 6 of the Act on health services, according to which "the previously expressed

desire cannot be applied, in the case of minor patients or patients deprived of

eligibility to legal capacity. " In this case, completely lacking refinement

intention of the legislature, whether to act on the wish expressed at the time when he was

the patient has already been deprived of legal capacity, and it can be assumed,

that this inaccuracy could be used against the will of the sick.

Due to the process of ageing of the population and the worsening mezilidským

relations with this error may relate to a growing number of people, therefore it is

the axle of the public interest.



56. As a fundamental impact on the freedom of decision-making about their own rights

also has a section 35 of the Act on health services, which makes it impossible for all patients

largely the eligibility of legal capacity, as well as minor patients


regardless of the age and maturity of the visit of a doctor without the consent of the legal

the representatives. In its paragraph 1 is required to find out the opinion of

minor patient, that is, having regard to his age, able to perceive

the situation and express, as well as the patient's eligibility for free

legal capacity, this view is, however, only be recorded in the medical

without documentation, it was obvious what he has referred to the importance for the record

his next treatment. This also applies to any record of reasons for which

his opinion could not be detected.



57. Neglect the factual competence of minors to consent

health care law got into conflict with the Convention on human

rights and Biomedicine, which lays down that, with increasing age and the degree of

maturity of the minor increases the binding nature of its opinion. In this Convention,

(I) in paragraph 45 the explanatory reports to her, inter alia, States that the opinion

minors should be considered as a decisive factor, whose importance is increasing

commensurate with their age and degree of maturity. This means that in certain

When taking into account the nature and seriousness of the surgery, as well as age

the minor and his ability to understand the opinion of minors

increasingly attribute the severity for the final decision. It would be

It could even lead to the conclusion that the consent of the minor should be for

some of the interventions necessary or at least sufficient. The law is in violation of and

with the force and with the newly approved by the civil code, which grants

capacity of minors to such legal actions which are

the nature of the appropriate intellectual and volitional maturity corresponding to their age.

Also still valid Act No. 66/1986 Coll., on abortion,

allows you to interrupt the pregnancy a woman ages sixteen to eighteen

the years with the fact that her guardian is informed about this procedure only.



58. Another serious impact to the basic rights of the patient have the adjustment included

in section 48, paragraph. 1 and 2 of the law on health services. The provider may

stop patient care e.g.. in the case that "the patient expresses disapproval

with the provision of all medical services ", which is itself a very

vague and misleading reason, especially in situations where the grounds for refusal

the adoption of the patient or their care provider just assessed. The

Although about its reasons must issue a written report to the patient, the patient

However, it has no ability to defend against such a decision, and even

in case if the doctor or provider of the abused. Already now

Moreover, in practice the refusal of care to cancer patients, who

certain reasons do not want to experience all of the proposed treatment.

The contested law legalizes this inadmissible practice, which not only to

violations of the Convention on human rights and Biomedicine, but even the article. 1, article. 4 and

article. 7. 1 of the Charter. A contradiction can be noted with the obligations

health care workers under the relevant laws and with the content of the medical

the oaths.



59. Under section 50, paragraph. 1 of the law on the health services medical

the worker not to provide health services in the case, if the

their provision of an immediate threat to his life or a serious

a threat to his health. In addition, that the patient is completely without their guilt

exposed to the risk that he will not be granted medical care in a timely manner or at all,

meets the approved adjustment of side participants and factual

the essence of the offence of failure to provide assistance pursuant to section 150 of the criminal

code. The law, in addition to tolerance to exposure of the patient to the risk of intentional

the health threat is bringing to the Commission of an offence. It is a significant legal

and an ethical breakthrough, which, moreover, was not informed in advance of the general public,

nor is it about the planned modification would not lead the discussion. Yet,

Medic provides assistance without regard to your own risk. If for example.

medics refuse to assist in the extension of the unknown epidemic, saying that

they could become infected and die, not at all health care is provided and

thousands of people will die without help. Secondary participants but are questioning

and § 50 paragraph. 2 of the law on health services, which may be

refusal to provide health services due to conscience or

religion. Every citizen has the right freely to

to decide on their future profession, however, if you elect for health,

It does so with the knowledge that it will be his duty to save human lives and

at the expense of his own life. It is based on (i) the medical oath, ethical

the code, adopted by the Congress of the doctor of the Czech Medical Chamber, or Ethical

the code of the medical worker's non-medical disciplines, published in

Journal of the Ministry of health no. 7/2004. For example. According to § 2 of the ethical

a doctor with doctors of the Code imposes an obligation to in cases of threats to life and

immediate serious danger to health without delay to provide medical

assistance, even in situations of public emergencies and disaster relief

natural or other nature.



60. the attention of the participants to the Side and the non-compliance of legislation management

medical documentation and processing of personal data of patients with the article. 4

paragraph. 1 and 4, article. 7. 1, article. 8 (2). 1, article. 10, paragraph 1. 1, 2, 3 and 4(1).

13 of the Charter and article. 8 (2). 1 of the Convention. Specifically the complain section 52 of the Act on

health services, when processing personal data allows you to

dispose of the first number of the patient in his medical documentation and in the

The national health information system, if a collection or

the processing of data or their retention applies to a particular

the patient. In § 53 and 54 is again addressed in detail the method of processing and

the retention of medical documentation, but without the slightest

way treated the obligation to protect the documentation in paper form.



61. The health of citizens, and also the implementation of the article. 31 Instrument eventually threatens both section 14

the law on health services, which sets out in detail the rights and the relatively

duties of the professional representative, who expertly manages the provision of

health services. Is not already clear, however, what is actually responsible,

or whether his expertise and responsibility concerns the provision of health

expert management services or the provision of such services. The answer does not imply

Neither of its paragraph 3, under which the professional representative shall exercise its

function to the extent necessary for the proper management of the support provided by the

health services. The discrepancy is based and the fact that a person may

to exercise the function of the vocational representative up to two providers. If you would

While for example. two large hospitals had only one representative,

Therefore, one person with a key feature to control the quality of services,

quite fundamentally compromised the quality of provided health care.



62. In conclusion, his submission of supporting participants formulate some general

objections to the act as a whole. They point out that in many

places appear inaccuracies, that not only would lead to different

interpretations, but also can become the basis for a different serious illegal

the negotiations. The law denies the principles of protection of legitimate expectations the claim, which was

already individualizován Act or is individualizovatelný on the

under the legislation, as does the existing legal situation. Changes

must be carried out sensitively, and only to the extent necessary for the achievement of the objectives of the

Regulation, because only this will guarantee the stability of the realm of free

the negotiations. In addition, the law contains discriminatory provisions. If

The Charter grants everyone the right to life and to help in the case, when it's

is not able to provide by itself, it is the duty of the democratic State and the system

health care, which is financed by the public health insurance, that

He was granted due care at the highest possible level. Of all the

for these reasons, suggest minor participants in the law as a whole or

its parts, which they applied the argument applies.



III.



Representation of the parties to the proceedings and amicorum curiae



63. The Constitutional Court pursuant to § 42 paragraph. 4 and section 69 of Act No. 182/1993 Coll., on the

The Constitutional Court, as amended, asked the parties to the proceedings,

which are the Chamber of Deputies and the Senate, expressing to all three

proposals.



64. Due to the specificity of the issue further thought expedient

request to these proposals and opinions of the other bodies, which to them

due to its scope could indicate the relevant facts and

the argument. Specifically, he asked the Constitutional Court on the representation of the Ministry of

labour and Social Affairs and the Ombudsman's proposal to repeal

the new legislation on public service Institute, Ministry of

health, the Czech Medical Chamber, the Czech dental Chamber and

Czech lékárnickou Chamber a proposal to repeal health law

services, and the Office for personal data protection to objections concerning the new

legislation the national health information system. To the way

the adoption of the contested Law, the Constitutional Court received the opinion of the Chairman of the

the Government.



III./a



Representation of the Chamber of Deputies and the Senate



65. The Chamber of deputies in its observations of 24. February 2012 and 29.

March 2012, signed its Chairwoman Miroslavou Lang, and the Senate

in its observations of 21. February 2012 and 12. April 2012, signed

its President Milan Štěchem, summarise the progress of the legislative process

in respect of all the contested laws or provisions.



III./b



Representation of the Prime Minister



66. The Constitutional Court has received 27 September. February 2012, President of the Government

RNDr. Petr Nečas to design a group of MPs at the cancel 14

the laws, which the plaintiffs ' argument that casts the constitutionality

procedures for their adoption. Of its content shows that the Government has submitted

The Chamber of Deputies proposals contested laws already in the period from 8. April

2011 to 30. June 2011. It is thus clear that, given sufficient space

for their consideration in both chambers of Parliament in compliance with all

the standard time limits of the legislative process. The Government won't initiate voicing

consent to the adoption of these laws in the first reading, or their

the hearing in a State of legislative emergency and summary proceedings. On the contrary,

progressed in a way to suit all the requirements of the legislative process

resulting from the case-law, in which the Constitutional Court dealt with the roles and

position of the parliamentary opposition and some principles of the controlling


the legislative procedure in both chambers of Parliament. Thus was created

time for a public debate over the proposals, as well as increased

for their review and discussion in the proper, adequate and

rational parliamentary discourse. Also foresee a time length was

proportional to the magnitude and importance of the changes that the draft legislation

they bring. Parliamentary discussion of these laws could live up to their

legitimising function, and can lead to the fulfillment of all the constitutive elements of the characters

proper conformal, constitutionally the legislative process.



67. Further stated that, after the Bills were duly and standard

in the manner discussed the Chamber of Deputies, were once again on the agenda

the deliberations as a result of the return or the refusal on the part of the Senate. In

the framework of the consideration of proposals of laws pursuant to section 97 of the rules of procedure have already been

possible to change anything on their content, only it was necessary to decide whether the

the proposals have to be really accepted, or whether they should be adopted in the wording of the

specific amendments by the Senate. Up to this stage of the

the legislative process to the applicant contested merge

the debate and the limitation of speaking time in this debate. Unlike

the plaintiffs, however, the Prime Minister believes that the amalgamation debate

occurred in accordance with section 54, paragraph. 8 of the rules of procedure of the Chamber of Deputies

constitutionally Conformal manner, when this decision was taken in the form of

autonomous procedural resolution of the Chamber of Deputies, which was

rationally justified, and received the necessary number of votes. Any

koaličnímu or opozičnímu members was not at this stage of the hearing

denied the opportunity proposals to present material. By limiting the

speaking time to 10 minutes twice because there has been no significant violations of the

the basic principles of parliamentarism, as de facto parliamentary discourse

took place, albeit on his level, and the content can have different opinions.



68. The parliamentary debate should not be, however, since the purpose of the

the exchange of views of members of the various political factions, respectively, to

the topics that are currently being discussed in the parliamentary process.

Such rational discussions have been an exchange of views on whether

The Chamber of deputies to adopt pending proposals at all, or whether

has to make in the text, in which the previously agreed, or in the text of the

amendments adopted by the Senate. While no members of Parliament cannot be

to deny the right to rationally defined content from the following discussion

deviated. If so, however, will do. selects the obstructive approach on

that also has the right, is a legitimate, if the parliamentary majority

in a reasonable manner will use procedural tools that gives her rules

regulations respecting the rights to each Member on the speeches and

voicing his opinion did not make a complete paralysis of the

the Chamber, which would be in conflict with the Mission of the Parliament as

the legislature. The assessment of the admissibility of the measures to limit the

obstruction is then always the question of the assessment of proportionality and whether

was respected the rights of the individual members ' participation in the obstruujících

the parliamentary debate, or the right to the protection of parliamentary minorities as

such.



69. In connection with the question of proportionality, respectively. the question of the assessment of the

"the injury", which should be caused by the parliamentary opposition, the merger

debate and limiting the speaking time in this debate, he pointed out

the arguments and the conclusions reached by the Constitutional Court in assessing the

the constitutionality of ad hoc decisions of most Senators don't dwell

the draft law on the stabilisation of public budgets [cf. part X/b award

of 31 March 2004. January 2008, SP. zn. PL. ÚS 24/07 (N 26/48 SbNU 303; 88/2008

SB.)]. In situation, when consulted on the draft either returned to the Senate with the

amendments, or when it was a single vote on proposals

refused by the Senate, was the protection of the rights of the parliamentary opposition, the

Therefore the plaintiffs ' objections to the course of legislative procedures are not from

terms of the possible finding of unconstitutionality, and the reasonable

the plaintiffs claim the burden of proof therefore take their

unconstitutionality. At least for this reason cannot be considered for proposal than the

inconsistent with the provisions of § 34 paragraph. 1 of the law on the Constitutional Court, and thus

ineligible on merits of the discussion.



III./c



Representation of the Ministry of labour and Social Affairs



70. The Minister of labour and Social Affairs Dr. Ing. Jaromír Drábek introduction

his extensive observations of 6. February 2012 described reasons,

for which the public service Institute was established with effect from 1. January

2009 in the section 18a of the Act on assistance in material need, as well as the existing

experience with its use by the municipalities. In summary, that the purpose of

This Institute was to promote its own activity persons in material need when

solutions to their current life situation and at the same time help to all the municipalities in the

The Czech Republic on the activities, which are in their interest (eg.

improving the environment in the village, maintaining the cleanliness of streets and other

public spaces). Most of the municipalities, which has set up a public service, so

made after the system has been of assistance in material need from July 2009

In addition to the motivational measures accompanied by sanctions and on measures to increase the

activities for persons receiving more than six months post on

living and for entitlement to this benefit have an obligation to raise the revenue's

own work, but no do not. The performance of the public service

to justify maintaining the amount of this contribution over this period of time, without

its decline has occurred at the level of subsistence. An important contribution

This Institute was primarily realized by persons in material need, which

have earned the opportunity to establish new social ties and their

further development and to maintaining or regaining work habits. With that

and the acquisition of new knowledge, experience and skills that

improve the odds in finding permanent employment.



71. The new legislation is based on experience with the existing applications

the Institute of the public service, while pursuing the objective of its enlargement and to

job seekers, who are led in the registration of applicants for

employment conducted by the labour authority. The Ministry therefore with this Institute

worked and counted with him as part of a comprehensive policy

employment, or as a tool capable of reintegrating

unemployed people into work. Organize public service

It was possible not only to municipalities, but also other entities, and

non-exhaustive list of appropriate circuit activities remained preserved in the original

the form. In order to facilitate the performance of administrative duties was

her organization is transferred to the Labour Office, or on the individual

the county offices, even in the context of the fact that it has been consolidated

Agenda nepojistných of social benefits. At the same time was created space for

increase the participation of the Office of work on some of the costs associated with the

the Organization of the public service.



72. in relation to the provisions of § 30 paragraph. 2 (a). (d)) of the law on

employment, the abolition of the appellants also seek,

He stressed that it provided for a reason to disqualify applicants from the registration of candidates

on the job is not the only reason, but a consequence of such act

combines with other reasons (e.g. If he refuses to board the appropriate

employment mediated by the Office of the work). Even in these cases, while

jobseeker loses the right to unemployment benefit and is not

for him to be covered by health insurance. Only in 2011 from above

for those reasons, culled from the registration of job seekers about 85

000 job seekers out of a total 657 000 registered. Office work

However, you must always take into account the potential serious reasons the applicant

employment, for which he could not fulfill his obligation. The above-mentioned reasons

worthy of special attention are exhaustively listed in section 5 (a). (c))

of the Act, in the case of their existence (not to mention)

the removal from the register of job seekers. The first five

reason is clearly given and easily distinguishable, e.g.. child care

until the age of 4 years, the care of a dependent physical person or health reasons. In

the last point, where she talks about "other serious personal reasons", is

However, left a partial space for administrative discretion, so that they can be

take account of the fact that the law could not have foreseen and which

as a rule, is the person whose duties, rights and claims to

shall decide. It is therefore not true that persons especially vulnerable to market

the work was in danger of removal from the register of job seekers. On the contrary, these

persons are specially protected and the contested provisions do not apply to them.

The reasons included in the provisions of section 5 (a). (c)) fully cover

circumstances, which could mean a violation of the dignity of

man, therefore it is not a public service in conflict with this requirement.

If the disposal occurs precisely because of the refusal of the offer of public services,

a natural person may apply for the inclusion in the register of job applicants

After a period of employment of up to 6 months from the date of removal from the register.



73. The application of the practice of the Office work in the matter of the public service is from 1. January

2012 follows. Jobseekers is the performance of the public service

offered as one of the activities within the framework of the individual action plan,

whose content is the determination of the procedure and the timetable for implementation of the

individual measures, which are aimed at increasing the options

the application of job seekers to the labour market. Among his other

activities include, in particular, the processing of your resume, and his menu

through the employment services information systems, introduction to

with the techniques of searching for jobs through the so-called. job clubs and

other advisory programs to obtain search techniques

job posting in specific and non-specific retraining

or the security of the work location within the active policy

employment, including the socially efficient work space.

Individual action plan is conceived taking into account formal

qualifications, health status, capabilities and abilities of the candidate

employment, which is involved in its production, while its purpose is

increase the possibilities of its application and its activation. Is being drafted


always, if the applicant is in the registration of job seekers continually

longer than 5 months. From the 1. January 2012 but can be individual action

a plan drawn up at the request of applicants even before the expiry of this period. Continuously

There is also an update, whose part is also the evaluation of the

implementation of the measures contained in it and the proposal for the next steps.



74. The public service has never been mass matters or in such a

the tool does not have a State. For example. in 2010, the public service is carried out in

average of 11 400 people in the month, when the total number of unemployed

persons amounted to approximately 500 000. This means that the public service was

of course less than 2.5% of the registered unemployed persons. Her performance

in doing so, has never been and is not a condition for the granting of the aid in

unemployment. Denial of public services may lead to the disposal of

the registration of job seekers, however, this is one of the many reasons

in the case of other legitimate reasons for disposal may occur

at any time, even in the less than two-month period.



75. In terms of international comparison, not the Institute of public service

Singleton, and even as far as the countries that are signatories to the international

the contracts referred to the claimant in their submission. This is true even for economically

and politically, the country in the Visegrád group.



76. In many respects, tougher legislation was 11. July 2011

adopted in Hungary. The unemployed have the right to receive social benefits

only after a period of 90 days, while for the other income benefits must meet the

conditions, one of which is the participation in the program of the public service. May

Act eg. on cleaning public spaces, building

infrastructure, but also manual work in the construction of stadiums or water

works. Do not take with no regard for the distance of the place of performance of this

work from the residence of the unemployed, and the public service can also have the form

work for private entities. The refusal means the loss of the possibility to get

any unemployment benefits and assistance in material need. The performance of the

public services but does not constitute a condition of further income benefits,

but these include (with identical consequences of breach) and eg. the obligation to

keep a clean house or garden. Referred to the adjustment is in Hungary

functional, although her partial criticism of the parties of the left. Similarly,

as the domestic legislation is aimed at the prevention of social

the exclusion of the unemployed.



77. Also in Poland the legislation has similar features with editing home,

Since the Labour Office may require to carry out public works nezaměstnanému

(i.e. work organized and financed by the public administration or

non-governmental organisations) for up to 12 months. If doing so

unemployed without serious reason, the performance of public work, shall not be entitled

to further support in unemployment. Polish edit is not considered

the problematic and is fully functional.



78. In Slovakia, the current legislation to some extent similar to the

the original home of the public service, effective adjustment to the 31 December 2004. December 2011.

Assistance in material need has a more basic components, of which belongs to all

and only those who perform public service. From the expert

However, observations show that the ratio of the basic amount of the assistance in material need and

the supplement is unbalanced, and the adjustment is, therefore, in the long term

unsustainable. In particular, critics point out that the low level of contribution

public service effectively supports the passivity and unemployment, therefore

It is planned to reduce the basic rate of assistance in material need, up to the amount that

cover only the cost of one hot meal a day. The higher the contribution will

belong only to those unemployed who pursue public service, thereby

will de facto convergence of the Slovak editing with modifications of the above

countries.



79. From other developed countries points to the solution applied in the

the Dutch Rotterdam, where he was the recipient of social benefits introduced

the project publicly beneficial work. As with the current legal

editing is not the main idea of the compulsion to work, but the reintegration

the unemployed into working life and the prevention of social exclusion. In

the practice has been unemployed, who is interested in social benefits, take

work for private entity funded by the city for this purpose. In

The United Kingdom was again in 2011 to introduce the so-called. mandatory

work that is performed after 30 hours a week, and

refusal to participate in it means also the rejection of the contribution for the applicant

employment. Even previously introduced a similar system also Australia, where

the unemployed had to for more than 6 months to work as a

the volunteers, in order to be entitled to social benefits. Other developed countries

(eg. Germany, France, Belgium, Austria, or some States of the United

States are considering the introduction of similar systems).



80. Finally, it cannot be Excluded that the Czech legislation is based on the

non-binding documents of the European Union, namely, the recommendations of the Commission of

October 3, 2008 No. 2008/867/EC on the active inclusion of people excluded from

the labour market, according to which, in the context of the active inclusion strategy

job seekers should be entitled to sufficient resources combined with the

Active readiness to work or participate in training for

the purpose of obtaining employment in the case of persons whose situation the active

preparedness allows. The contested provisions also implement major

directions according to the decision of the Council of 21 April 2004. October 2010 no 2010/707/EU

guidelines for the employment policies of the Member States. Guideline No.

7, inter alia, key character motivation to economic activity.

Member States should therefore establish adequate systems of social

security, which clearly lays down the rights and duties of the unemployed,

actively looking for work.



81. on the basis of that overview the Minister notes several

global trends, which include that the unemployed will not be

pay and the right to social benefits is linked to the activity on the market

work, and that can include also an obligation the performance of community service

the work. Furthermore you can sort between them, the fact that public work prevents

social exclusion of unemployed and positively affects their

remain in the established social ties and memorized the morally

acceptable patterns of behavior. Each State may eventually provide only

such social benefits, which correspond to the degree of economic

options and capabilities, and even taking into account the current situation. These

trends also corresponds to the amended legislation, which is at its core

only the consistent implementation of the principle, according to which social benefits

belong to the socially needy, and not to those who do not want to work and

rely on a system of social benefits.



82. The subject of Act No. 435/2004 Coll., on employment, as amended by

amended, ("the Act") is

assurance of the State employment policy, whose objective is to achieve the

full employment and to protection against unemployment. In the case of the law on

assistance in material need is this the objective of providing assistance to ensure

the basic living conditions of the natural persons residing in the material

need. Both of these laws is thus to be understood as directly

effecting the article. 26 paragraph. 3 and article. 30 paragraph. 2 of the Charter, which contain

the law, which can be used in the meaning of article. 41 of the Charter claim only by law. The text of the

These articles contains principles that the law must be detailed. In

the case of the article. 26 paragraph. 3 of the Charter, that means that the legislator must provide

the conditions of a reasonable range of material to ensure citizens, who without their

the blame cannot means for its necessities to obtain work, taking

If not doing so would set conditions or impossible or

contrary to a constitutional principle, originated by the unconstitutional status. It

the same applies to the case where the conditions have been established, with which

It would have been disproportionate to the associated procedures, or which should be unreasonable

(a strangling, winding-up). Similarly, in the Charter of a determined and

her article. 30 paragraph. 2 concerning the assistance that is necessary to ensure

the basic living conditions of the of the person that is in material need. It is therefore

clearly, for the determination of the conditions of tangible collateral, respectively.

basic living conditions, has the legislature relatively "free field

the scope of ". Their scope and contents may vary significantly in the very time

in particular with regard to economic and social development in the country, with the

in this context, it cannot be ignored, nor the current unprecedented

the economic crisis. The specific solution depends primarily on the

the political preferences of the legislature, shall not, however, diverge from the base

the constitutional framework, but it is not the case of the legislation.



83. The legal adjustment of the Institute of the public service Minister, confronting with the

article. 28 of the Charter, under which employees have the right to a fair

remuneration for work and to satisfactory working conditions, with regard to the

that in the exercise of public services does not belong to the reward. In the article. 28 of the Charter is not

explicitly stated, what is to be considered a reward, respectively.

except as expressly stated, that has to go for financial reward, even if it is apparently

the most common and most traditional form of remuneration for their work. The contested

the provisions of the Employment Act the right candidates neodpírá.

Candidates will be registered, if the legal conditions, paid the levy,

Therefore, he will be the State provided the means to ensure basic

the living conditions. The Charter itself guarantees a right to remuneration for work, and

It is therefore entirely legitimate requirement that payment of funds (money)

It was bound to perform certain work, in the case of the public service.

This design, of course, if we come from extensive interpretation,

that even registered jobseeker is an employee within the meaning of article. 28

Of the Charter. If this were not so, the candidate would not have been registered holder

the provisions of the basic law in accordance with this § 18a, paragraph and confrontation. 1

Bill on assistance in material need, in part, that in the exercise of public

the service does not belong to the reward, with this law would not be needed. Anyway, even

in the article. 28 Charter does not provide for limits and closer to the definition for the law, which has

provide details.



84. contrary to the provisions of namítanému infected with some


mezinárodněprávními documents, the Minister said that the adjustment is under consideration of the

a substantial part of it shall not affect the right to free choice of employment, as

targets on a totally different situation. Indeed, to apply, where a person's on

their livelihoods freely chosen works already more than two months

do not do so. Gramatickým and logical interpretation of international conventions

governing this right (see paragraph 23 of this award) can be distinguished

the positive of this folder rights that constitute the right to freely search's

job search employment freely accept and work in it

exercise, and a negative component, which is made up of the right to be free

employment. Both folders correspond to the obligations of the State, not the people in the

free search for employment, the employment relationship and to protect its weaker

Contracting Party (employee) and carry out an active policy

employment. In this context, it recalled that the maximum range of

public service for the purposes of section 30, paragraph. 2 (a). (d)) of the law on

employment is set at 20 hours a week, with the remaining time remains

job seekers available to used its right

the freedom to seek employment, to's if he wants to use it. For comparison, you can

to indicate that an employee at the time of notice, that wants to take advantage of their rights

actively search for a new job, the only available time off work in

the extent of one half of the working day, that is, at least five times a week

the smaller. Maiori ad minus argument and it can be concluded that if the

employees whose employment relationship is coming to an end, and lives in

the uncertainty about his future on the performance of his rights just described

4 hours per week, just job seekers to exercise this

law of 20 or more hours a week. It is therefore appropriate to conclude that the obligation of

to perform the public service shall in no way prejudice the right to freely search's

employment and job search job to take. There is no or limited

the negative component of the right to free choice of employment, since the candidate

can the public service at any time and to refuse to voluntarily remain without

employment.



85. The contested provisions of § 30 paragraph. 2 (a). (d)) the Employment Act is

possible to confront even the prohibition of forced labour or services under article. 9

Charter and certain international legal documents. Their provisions

contain the negative definition of forced labour. A positive can be

found only in the article. 2 Convention on forced or compulsory labour, which for

the Convention defines forced labour, so that means a work

or service, and any) that the person be enforced under threat

any sentence and (b)) that stated a person offered voluntarily.

The following conditions must be fulfilled at the same time. In the absence of a different definition of it

You can get even when assessing the compliance of the contested provision, the prohibition of

forced labour in accordance with international conventions.



86. In the legislation already is missing the first of the conditions, as

the public service is not enforced under threat of punishment. You need to consistently

vary the punishment as a penalty for the committed offence, misdemeanor or

another administrative offence, consisting in the removal or limitation of existing

right or freedom (such as the right to personal freedom in the sentence

freedom, the right to own property in ordering the punishment, the right to freely

business activity in the punishment of the ban), from the determination of the conditions for the granting

entitlement to social benefit, which goes in a given case. Due to the

the fact that the enumeration of these conditions is exhaustive and intelligible, each

the candidate knows in advance what must meet for the leadership in the registration of applicants for

employment and for the granting of unemployment benefits. Legal question

the adjustment is therefore not surprising nor does broad administrative discretion.

At the same time not přisvědčit, nor the claim that the candidate had seen disposals

from the registration of job seekers as the injury. Candidates cannot be due to the

This step to save any fine or a similar sanction, therefore he

disposal of records does not arise or any material injury. In this

the context does not stand up to the need to pay the voucher yourself health

insurance, as this obligation is saddled and persons without taxable income. In

the case of the unemployed is a reimbursement by the State of a particular

the main advantages. Also, you cannot speak or foregone profits. The candidate had

the front knows what conditions must meet if it wants to be recognized in the

Register and receive unemployment benefits. It is free to

refuses to meet, to be charged and it is not the fault of third parties

or perhaps on a higher power. The formation of any non-material injury eventually

excludes the fact that it is in the best job seekers meet

all of these terms and conditions and shall be entitled to obtain.



87. Referred to the argument, you can add an gramatickým interpretation of section 30 of the Act

on employment, from which it follows that this provision clearly

It lays down the conditions which leads to violation of the registration of the disposal of the person

job seekers the regional branch office work. A common feature of

These terms and conditions is that the regional branch office of the work cannot reasonably be

apply to such person on the registration of job seekers.

However, this is not about punishment, but only about the inevitable result in insufficient

the cooperation of the person held in the register of job seekers, as is the case

even in the case of failure to comply with other conditions, for example. as a result of obstruction

provided for synergies, the removal of consent to the provision of personal data,

the performance of illegal work or refusal of embarkation to a suitable job. From

those examples show that if has a violation of conditions for

keeping job seekers follow the punishment, the legislature

quite rightly, created by successive offence infraction.

Denial of the exercise of public services but it is not an offence. From the viewpoint of

systematic interpretation can be pointed out that the provision is

part of title II of part two of the Act on employment, while misdemeanors

and other administrative delicts are governed entirely separately in the seventh

of this law. The conclusion, according to which the failure to comply with the conditions for the granting of

a claim should be considered a penalty, can be described as absurd.



88. the filled but not even the second of the conditions of the compulsory

work, namely the feature nedobrovolnosti. The legal basis for the exercise of public

the service is the written contract (IE. two-sided manifestation of will), closed

between a person in poverty or a person registered as a candidate for

the regional branch office of the employment and labour in agreement with the municipalities or other

by the body. It is only on specific candidates, whether or not.

It is not essential that the law brings together with neuzavřením of the Treaty, the disposal

from the registration of job seekers. Although you can recognize that the will of the applicant

to conclude a contract for this reason is not completely free, in our legal

the order is many similar relationships, when the position of the Contracting Parties is

procedurally, however, comes straight from the de facto oferta stronger (in particular

economically) the position of the oferenta. If we for forced labour or

the service marked every job or a service that is "enforced" by the need to

to get the money, it would probably have been forced, the vast majority of all

labor relations, into which people enter primarily to

earn money, or in the words of the Charter, "in order to gain resources for

your life needs. " The contractual nature of public service is clear from

section 18a of the Act on assistance in material need, according to which the applicant has the option of

refuse the offer. Due to this contractual freedom, the Institute cannot be

the public service and its use as a condition for the retention of records

job seekers in relation to the article. 9 of the Charter considered

unconstitutional.



89. the previous statutory employment law knew in section 30

paragraph. 2 removal from the register of job applicants, and for many reasons,

that is its nature nor its consequences differ very little from the contested

the provisions. The new legislation has not even new Institute of public

services or further specified the conditions for the disposal of records

job seekers. Did not change the essence and sense of the provisions,

which is to allow the disposal of the records, but for this

the disposal has set another reason. Constitutionally it is not essential

the difference between refusal to board the suitable job or

agreed retraining, which challenged for unconstitutionality was not and is not, and

between a rejection of the offer to perform the public service under the Act.

The contested provision does not alter the qualitative adjustment, adds only another

a condition for removal from the register, which is not even fulfil even

requiring seekers unfair procedures. It cannot be

considered as not "a strangling" within the meaning of the findings contained in the award of the day

May 20, 2008, SP. zn. PL. ÚS 1/08 (N 91/49 SbNU 273; 251/2008 Coll.).

The performance of the public service within the meaning of the contested provisions definitely

does not impair the social status of natural persons, or persons close to them. On

This activity registered job seekers may not incur any

financial and material resources.



90. For all the above reasons, it is clear that the public service is not

or enforced under threat of punishment, nor is it the work of an involuntary. For

forced labour, but it would not be possible even in the case that the

These characters meet, as would be covered by the exceptions

laid down in the relevant international treaties. The public service should

specifically falling under an exception within the meaning of article. 4 (4). 3 (b). (c)) of the Convention,

the ban on forced labour does not apply to services that are required in the

the case of an emergency or disaster threatening the well-being of the community. Current

the economic situation, characterized by considerable uncertainty and demolition

several European countries on the edge of bankruptcy, is in the last 80 years

completely unprecedented, brings the State of economic emergency and jeopardizes the welfare of

the community. In this situation, the public service is a completely legitimate

means of combating the economic crisis, as it was a legitimate

means for example. in the United States in the 1930 's. years 20.

of the century. For use of absolutely similar arguments may be made to the fact that

is populated with the exception according to article also. 2 (2). 2 (a). (d)) of the Convention on forced or

compulsory work, because the current economic situation is exceptional

circumstances, which endangers or may endanger the normal living conditions


all or part of the population.



91. the challenge, nor would the argument concerning the article. 4 the latter Convention,

According to which it is forbidden to allow saving of forced labour in favour of

private bodies. Indeed, it cannot be mixed, for whom the public service

exercised, in whose favour the public service is carried out. Cited

the article is focused only on that of forced labour cannot benefit

a private person. The legislation is concerned with this requirement in the

line, because of the definition of the public service, it is evident that it will be

the benefit of the whole community, and not individuals, when everyone will be

benefit from the improved environment, clean streets and public

the area developed culture and sport and the quality of social care.

On the contrary, it is quite indecisive, for whom the public service is carried out. On

assessment, whether it is forced labor, does not affect the

environment or the cleanliness of streets and public spaces tend to

the basis of the contracts concluded with the competent administrative authorities of the private

bodies. In practice, it is, moreover, the performance of a public service to private operators

rather than a benefit, which is manifested, among others. the fact that private

bodies to enable the performance of public services are subsidized by the State.



92. Finally, not even one of the prohibited forms of forced

work according to the article. 1 of the Convention on the Elimination of forced labour. Of forced labour by

article. 1 (a). (b) of the Convention be cited) cannot, because the purpose is not

the economic development. In the current economic situation, it is the purpose of the

economic terms at most, mitigate the impact of the recession on the material

part of the population, but the purpose of legislation under consideration right from the

the beginning declared is the prevention of social exclusion and the assistance to applicants

about the job. The secondary purpose is the improvement of the quality in the areas of

human activity, which is a public service intended. From the enumeration specified in §

18A Act on assistance in material need parsed above, it is evident that the

This is an area of human activity in the public interest, without direct

economic impacts. This is not even about forced labour within the meaning of article. 1

(a). (c)) of this Convention, because it is not a means of discipline. In

such a case would have to be able to save public service performance against

the will of the people, that it doesn't want to be held, for the purpose of fortifying its working

discipline. But the regional branch office of the law of work with resources

enabling force for the performance of a public service job seekers, which

It does not want to exercise.



93. Non-compliance with the law is not given to the reasonable security

unemployment, which is positively regulated in the Convention on the minimum standard

social security and the European code of social security.

This right can be defined as the right to a protected person (or citizen according to the

the diction of the Charter) on the provision of unemployment benefits, if

unemployment caused by the inability to obtain appropriate employment and

the protected person is able and willing to work. According to the relevant

the provisions of the Employment Act has on the granting of aid in the

unemployment claim only registered jobseeker, taking on

leadership in the register shall be entitled each natural person who meets the

the conditions laid down by law. About the non-inclusion or removal from the register shall

the regional branch office, work to issue administrative decisions, which is also

ensure the possibility to use the remedies against him, including

possible review in the administrative justice system. This legislation is so in

accordance with article. 70 paragraph. 1 of the Convention and with article. paragraph 69. 1 of the European

Code of social security.



94. The unemployed persons can be divided into three categories, and it's on and) persons

Unable to work, b) person able to but unwilling to work, and (c))

able and willing to work, and cited documents, undertake to

the signatory States to make unemployment benefits only the last group

persons. So the argument does not stand up to the plaintiffs, that restrict the provision of

unemployment can only be for the reasons given in the article. 24 of the Convention

a minimum standard of social security and article. 23 the European code

social security. Both these contracts limit the range of eligible

the definition of protected persons already in their article. 20, the first two of the above

referred to a group of persons not included. This also corresponds to the legislation referred to in

the Employment Act, when a person unable to work are not included

the registration of job seekers, and social exclusion and

material shortage is protecting other benefits than Dole. In

the case of persons capable of, but unwilling to work allows the domestic legal

Edit removal from the register of administrative decision after their

unwillingness to work out. If one of the "detection"

characters of this reluctance is the denial of boarding to the suitable employment can be considered

the use of the argument and foiling inferred that similar constitutionally Conformal

the character is also a rejection of the offer the performance of public services. Features for which

jobseeker sees the offer as a suitable job

offer the performance of public services, is more. Public service namely

It reminds the working ratio of part-time and the candidate for it receives

reward, albeit in the form of social benefits. On the contrary, the third group, that is, persons

able and willing to work, are protected by the article. 20 of both international

contracts. These persons are also under Czech law properly and reasonably

be kept in the register of job applicants and authorized to receive the aid in

unemployment.



95. The termination of payment of unemployment benefits on the basis of the refusal

the performance of the public service is not foreseen in the article. 69 (a). (g)), the Convention on the

the minimum standard of social security, even in the article. 68 (b). (g)) of the European

Code of social security. Under these provisions, you can benefit, at the

which the protected person would be entitled, stop, oblivious to the person concerned

the rules governing the behavior of recipients of benefits, without their content

These rules are somehow limited. On the basis that levy has belong

only people capable and willing to work, it can be concluded that the edit

the behavior of the recipient of the benefits by saving the public service obligations in limited

the range is completely conformist.



96. Finally, the contested adjustment cannot be above reproach even from the point of view

the case-law of the European Court of human rights. The Convention contains a prohibition on

slavery and forced labour, in its article. 4, but has not been addressed yet no

the case, which would be similar to the type of the Institute of the public service. Since

to ensure that the Charter will not deviate significantly from the way it is

the prohibition in question formulated at the level of the Convention, it can be concluded that the amount of

those conclusions will apply in relation to it. Even here, however, the

public service delivering the characters of forced labour.



97. the European Court of human rights in the past, judikoval

the violation of the article. 4 of the Convention is not the performance of the obligations connected with the specific

by profession, whose performance of the complainant's choice and that he knew,

If this is not an obligation clearly completely fixed in relation to the

the nature of the profession (see the judgment in case Van der Mussele against

Belgium). To do this, it should be noted that this case is on the project

the Institute does not apply, since the type concerned employee, and not

job seeker. If, however, we take the basic general

the rule regarding the obligation does not have to be clearly

fixed-width, in the case of such a case is not, or cannot be

It found "a strangling effect". In other decisions of this Court

He stated that for forced or compulsory labour is considered to be any work or service,

which is required under the threat of a punishment and that the individual

does not of its own volition (e.g. judgment of July 26, 2005

in the matter of the complaint against France Siliadin No. 73316/01, paragraph 116). The assent of the

the complainant is then usually the facts the existence of coercion, negative

and thus the violation of article. 4 of the Convention. It must not, however, be a situation where it is

the consent of the complainant, with a certain activities with regard to the importance of the

for him, that is, in fact, inevitable. When in the

virtually no choice but to agree. In the case of public-service already but it was

stated that the contractual freedom of job seekers, which was

the offer has been made, the public service is not limited. You cannot even claim that would

might be the authoritative establishing public service obligations

the public authorities on the basis of the law, because the candidate for employment in the

no way does not have such an obligation.



98. at the Institute in question cannot be related or other judikatorní conclusion

The European Court of human rights, according to which the illegal abuse of

distress to a person in order to induce it to pursue activities that would

These conditions do not engage on a voluntary basis. The law stipulates a very wide

the extent of the serious reasons, to offer public services without

any other effects. As has already been indicated in detail

the amount, scope and nature of serious reasons completely corresponds to the need to protect

the dignity of each individual. They also cannot be an abuse of the

distress, because the scope of the work offered in the framework of public services is very

wide. Media simplification, that this is a "sweeping the streets",

not based on the truth. Offered are the work of various kinds, including

the work in libraries and work within the social welfare facilities. The last

the reason for this is the lack of distress as such, finally, because, as has already been

detailed, disposal of the registration of job seekers in the

fact does not have "a strangling effect". The consequences of not fairly, with

What is challenged by another person without income, for example. entrepreneur, who in

the term does not have a contract, or for example. a parent in the household. Under consideration

the Institute in terms of the article. 4 of the Convention is not in it, that would be based

conditions of degrading treatment. It can therefore be concluded that the

the contested provisions are not in conflict with that Convention, or

do not infringe the principles expressed in the case law of the European Court of human

rights.



III./d



Representation of the Ombudsman



99. The Ombudsman. Pavel param V in its comments of

7. September 2012 draws attention to the content of the press releases of the Ministry of labour and

Social Affairs from 13 June 2005. December 2011, which should be open to the public


the service is initially being offered to persons, that is in material need and

at the same time are kept in the register of job seekers for more than one

year. Then he had the authority to offer public service work and applicants for

employment who are not in material need and are registered for more than one

year, and at the same time to those who were in the last three years, led by the register

job seekers in the sum total of more than one year. Referred to

means that the public service may also apply to persons, for which the State "only"

shall be reimbursed by health insurance, which, however, do not receive support in

unemployment or benefits. These persons must at the same time to meet and

a number of other obligations, for example. pilgrims regularly at a specified

the term for the Office work, to actively seek employment, participate in

the selection procedure, if the particular position of the doporučenku from the Office

work, or to fulfill an individual action plan. The Group of persons with

"unemployment for more than one year in the period of the last three years"

also includes a number of candidates to be given increased care

for their State of health, age, child care or other serious reason

(persons over 55 years of age, disabled persons, after parental leave).

In this context, it can be pointed out that the length of the registration cannot be

without further suggests the threat of loss of work habits. The contested

In addition, the legislation allows you to offer public services already after two

months without further evidence, and its non-acceptance has resulted in

a penalty eviction of the applicant. In the case of the following short registration so the public

the service can be offered to anyone for the first time in my life, is expected to help

State unemployment (especially in times of economic crisis), often

After long-term payment of social insurance. The legislation itself

(indeed, as evidenced by repeatedly changing the methodological instructions) allows

to stand against the individuals acted unpredictably and without

reasonable justification has established additional conditions for access to social

the assistance provided on the basis of social insurance.



100. Following the adoption of the contested provisions received public

the Ombudsman a few dozen complaints relating to the exercise of public

the service. Of the cases of persons who had turned on him, shows all,

that the legislation could violate the Charter guaranteed

the right to a fair remuneration for work, adequate physical security, or

even the prohibition of forced labour. This fact can't change anything or

the declared purpose of the public service, which is the ability to maintain.

the development of job competencies and skills of people, which in the long term

do not have a permanent job and have an objective or subjective, problems with

stating the relevant employment, since this purpose is not in practice

actually filled. A common denominator of complaints indicates the

opposition to the new concept of public service as such, and in particular

for her free performance. The complainants often States that currently

they did not receive Community or any social benefits and that the exercise of public

the service is for them financially burdensome, because you must pay for example.

the fare to the place of work. The public service also does not constitute

enhanced care, which, in the case of certain persons should be given when

mediation of employment, for example. because of their State of health,

age, care for children or other serious reasons. The candidates are public

by contrast, often hit on his dignity, if they have to carry out

for example. the janitorial work, and despite the fact that their education would be able to contribute

the skilled work.



101. To illustrate the impact of the application of the contested provisions of the fair

the Ombudsman summarises briefly the content of some of the received

complaints. Individual complainants in them drawn on it, that is in the

public service carried out the work that is unnecessary, and vice versa

are not effectively used in other instruments, such as employment policy.

subsidies to create jobs. In the supply of public services

are not taken into account the specific conditions of individual candidates, for example. care

about relatives or their qualifications. Applicants must themselves bear the

related costs, typically eg. travel. For being in conflict with the

some human dignity, the complainants considered the fact that when

the performance of the public service are candidates forced to tolerate marking reflective

In addition, on which is written "big VS and the number".



102. In conclusion, notes that his attitude to the present form of the public

the service is dismissive. For a very contentious, in particular the efforts of the State, shall be deemed to

that instead of rigorous checks on persons, suspected on

long-term work and the abuse of the welfare system, created by

"preventive" system, which also affects the person, whose sole

the problem on the labour market age, parenting, etc. Big problem

It also sees in violation of the insurance principle, on which the system is

unemployment benefits built. The State effectively forcing properly

of the insured person to the insured event occur (loss of

employment) the performance "for".



103. On 14 June 2004. November 2012 was the Constitutional Court received additional

the opinion of the Ombudsman, in which he points out a very austere

the adjustment of the Institute of the public service in section 30, paragraph. 2 (a). (d)) of the law on

employment and assistance Act § 18a in material need. The said

the provisions do not contain more detailed conditions for the procedure of the Office work in the

the implementation of the public service, which can demonstrate that they are not clearly

the rules, under what conditions and what work is to be offered

or what can be the maximum length of the public service. The de facto free essay

Office work creates a space for a wide range of interventions to the rights

the addressees of the public administration, because the procedure of the Office work for them

becomes unpredictable and logically can carry arbitrary characters. From this

should the Constitutional Court to assess the contested legislation and of the

point of view article. 2 (2). 3 of the Constitution and article. 2 (2). 2 of the Charter, which require

the State authority by law to have a clearly defined scope and power. In

the remaining part of its supplementary observations mentions other examples that

they have to testify about the tíživosti request to accept the offer of public performance

the service. All of them were persons who receive or support in the

unemployment benefits or benefits in material need.



III./e



Representation of the Ministry of health



104. The Minister of health, doc. MUDr. Leoš Heger, CSc., responded to the

the plaintiffs ' argument and both side of the participants that these

is your proposal to repeal certain provisions of the law on

health services, the memorandums from the 22. February 2012 and 26. April 2012.

In an introduction, he noted that the subject of proposals for the abolition of the basic and

the core of the law, which will be in the next decades to manage the Czech

health and to ensure high-quality and safe health care

the care provided at the appropriate level for all patients in the Czech

Republic. This reform and modern law unifies the still fragmented

and revised the legislation contained in the legal

the legislation not only forces of the law, but also in a number of implementing regulations

the discussions were held to be binding. For the first time in history, at the same time

uniting the conditions of delivery of health services for all

the provider without distinction.



III./ea



New registration obligation according to § 121 paragraph. 1 and 5 of the Act on the health

services



105. The contested regulation in § 121 paragraph. 1 and 5 of the Act on the health

Services provides to entities whose legal status is governed by the

existing legislation, enough time to create conditions for the

adaptation to the new legislation. At the same time, ensures that all

the addressees of the legal provisions guaranteed that after the expiry of a reasonable

the transitional period will be new and current needs and possibilities of modern

medicine appropriate terms and conditions to meet all those who

they intend to continue to provide health services in our healthcare

the system. The chosen solutions fully respecting the Constitutional Court has repeatedly

declared a ban on the right-retroactivity and the general admissibility of

retroactive, which is legal in every State, the necessary

the principle of controlling the relationship earlier and following the legal standards.

Talk to the appellants about "reach retroactive to the already

acquired rights ", as in the present case can be considered solely on the elements

the corresponding retroaktivitě, which consists in the application of the new

the terms of the legal relations arising from a previously valid editing, a new legal

editing, however, cancelled or changed. The new conditions on the existing legal

relationships apply only after the entry into force of the new law, and it with sufficiently

long (three-year) time lapse, which allows operators to

non-State health establishments to respond and adapt them to your

activities, or opt for their activities.



106. If the existing operators to continue their

activities, they can within nine months from the effective date of the law on health

services, ask for permission, and will, prove only

the formalities for requests for the release of this permission according to § 18 paragraph. 1 of the law

about health services. The decision will be issued within 1. April

2015, so that in the provision of health services without interruption and could

continue without restrictions, and it is already fully in the scheme of the new legislation.



107. the Proof referred to formalities is not considered by the Minister for the extensive and

their acquisition is not associated with specific difficulties, therefore it cannot be

be considered as administrative burdens. In practice, it will be for providers-

natural persons to act on the particulars of the type name and last name, State

citizenship, address, place of residence, and the date and place of birth

the applicant (the provider), the identification number, if assigned,

the identity of the professional representative, must be appointed, form,

scopes and types of health care, which the applicant intends to provide, address

the place or places of delivery of health services or the period during which it intends to

the applicant shall provide health services, asks if the issue only

for a specified period. The analogue information then cite providers-

legal persons. In other words, it is the essential range data


You can even require you to make a smooth transition may occur

the existing registration of medical equipment on the permissions granting

health services. A smaller range of information, this goal could not be achieved.

At the same time it is not true that the operators of medical devices to this

the application had to submit already submitted the documents or

specialized competence or the fulfilment of the conditions of the factual and

the technical equipment of the establishment. Here you can link to the express wording of the section

paragraph 121. 5 of the law on health services, as well as on section 18, paragraph. 1

of this law.



108. The current operators of medical devices is also nothing to prevent

in it ask for permission for the delivery of health services is fully

in the scheme of the Act on health services, and without limitation, not

within the meaning of the contested the transitional provisions. This initiated the administrative

management, are governed by the Act on health services and the administrative

the regulations in full. It is therefore the decision of the current operators

health care facility at which the legal path it chooses. The law on health

the service offers several variations of them, albeit without exception requires that from

April 1, 2015, anyone who intends to provide medical services to satisfy the

the requirements it imposed on this activity and maintaining it set

the level of health services, as can be expected in the modern legal State.



109. The received solution the transition of the old and the new legislation is not in the Czech

the rule of law is nothing new, unusual, or neočekávatelným

unpredictable, for which it is sufficient to point out for example. on the transitional

the provisions of the law on the protection of public health, the Trade Licensing Act and the

his novel, the commercial code and the novels, etc.



110. As regards the objection of plaintiffs, that the new legislation will hit

retroactively to the obtained specialised competence according to doctors

Act No. 95/2004 Coll., have stated that these objections are with

regard to the subject matter of the review of the contested provisions of the Act on the health

services, which petitem its proposal, define the appellants themselves,

irrelevant. Indeed, the lead content not contested

the law, but against the former referred to the law, effective from 2.

April 2004. Because, however, the appellants did not design the cancellation of certain

the provisions of this Act, nor the Constitutional Court cannot in these proceedings

review of its constitutionality. Yet the Minister considered appropriate

comment to these objections.



111. The plaintiffs in the first place have neglected to distinguish the person of the operator

non-State medical facilities, respectively. new provider

health services, which can be a natural person (do not go to the doctor)

or legal person, and the doctor who performed for this operator

medical and health care carries out directly in the fields referred to in

registration, or new in the delivery of health services.

The doctor is in the direction of the person called. professionally qualified, or

the law on the health services of the professional representative. The position of the

the operator cannot be mixed with the status of the doctor who is his

by the employee. Of course, it is not excluded that the same physical person has been

at the same time by the operator, or a provider, and the professional representative,

challenged the transitional provisions, however, relate only to the operators,

not the doctors and their specialized competence, which is a necessary

the condition for a separate profession of doctor. It is governed by the

the rules laid down by law No 95/2004 Coll., and whether in the transitional

the provisions of section 44, which are at the present time, i.e.. more than seven years after the

the effectiveness of this law, in principle, be consumed (with the exception of the amendment,

that brought some new transitional provisions), or in other

regular sections of the Act. The appellants militates against these

transitional provisions, thereby effectively preventing the position of that part of the doctors,

who want to exercise the professions of doctor in the fields for which they do not have

specialized competence. Do not already but no relevant reason,

why they should be granted such beneficium. Such a requirement

After more than seven years, the effectiveness of law founded unfounded differences

among physicians, he would disturb the established system of on-the-job training,

in which they are involved for example. even the University, University Hospital,

accredited workplace, as well as the structure of the disciplines of specialized

education, which were established in close cooperation with professional medical

companies. Not even the example referred to the claimant by the Minister

does not reflect the current state of the law, since law No. 346/2011 Coll., which

the amended law No. 95/2004 Coll., on conditions for the acquisition and recognition of professional

competence and specialized competence to perform medical

the professions of doctor, dentist and pharmacist, as amended

regulations, and Act No. 96/2004 Coll., on conditions for the acquisition and recognition

competence for the exercise of paramedical professions and to the exercise

activities related to the provision of health care and the change

some related laws (the law on the paramedical

occupations), in the wording of later regulations, doctors, who according to the

earlier regulations have acquired attestation of the degree in the basic scope and

the Czech Medical Chamber licence for the performance of private practice in another field

specialization, competence in this specialist admitted another scope

(e.g. in cardiology as indicated in the proposal).



112. It is therefore concluded that those physicians who do not yet have specialised

competence in the discipline in which they wish to separately provide health

care, cannot legally provide this care, and this fact

does not change anything, nor to the provisions of § 121 paragraph. 1 and 5 of the Act on the health

services or the law as a whole. You cannot, therefore, agree with the statement,

that the contested provisions are retroactive and extend into previously

acquired rights.



III./eb



The new legislation on the national health information system



113. the opposition of the national health neústavnosti legislation

information system in accordance with section 70 to 78 of the law on health services

the Minister said that it is not a completely new database, but on the information

the system of follow-up to the legislation contained in § 67c of the law on the care of

the health of the people. The new legislation, as was the case in the case of legal

edit previous, supplementing the annex to the Act in which they are listed

the various components of this system-registry.



114. In the formation of the contested provision was taken to the right to information

self-determination within the meaning of the award of 22 March. March 2011 SP. zn. PL. ÚS 24/10

(N 52/60 SbNU 625; 94/2011 Coll.), as well as to the international obligations of the

The Czech Republic, in particular the Convention on the protection of individuals with regard to the

automated processing of personal data (Council of Europe Convention No 108),

the famous No. 115/2001 Coll. m. s., and relevant practice

The European Court of human rights or the Office for the protection of personal

of the data. New and existing legislation, which formed the legal framework

processing of personal data in the health fully respects the

the requirement of the law No. 101/2000 Coll., on the protection of personal data and amendment

certain laws, as amended, (hereinafter referred to as "the law of

protection of personal data "), that the personal data if they are not handled with the

consent of the data subject, has been processed only if the Special

the law. The Ministry of Health's it was also aware that the naked

the law modified the framework for the processing of personal data is not enough, but that

processing of such data must be necessary, reasonable, appropriate, logical and

defensible, if the soundness of the processing of the exposed test

the proportionality of the interference with the personal and moral sphere of the individual, that is

directly under the protection of the constitutional order standards. In this context, can be

noted that the new legislation, national health information

the system is rational and justified in relation to the objectives pursued,

both are defined generally in section 70 paragraph. 1, and as regards the

registers, as well as in section 73, paragraph. 1 (a). and (f))) up to act on the health

services. It is not so true, that the purpose of the system and register themselves

It is vague and all-encompassing. The legislation corresponds to the protection criteria

personal data in the interveners cited European directive

Parliament and of the Council 95/46/EC, therefore, the requirement of a clear and explicit

expressed the purpose of the processing of personal data.



115. The law on health services in addition to the purpose of the national health

the information system also describes in detail on COM (section 70 (1) and (2),

section 74 paragraph. 1, section 76, paragraph. 1 the annex to the Act) and when data is anonymized

(annex to the law) or who has information, which are not intended to

publication, access (section 73 (2)). Other than the method in it

the treatment is not possible. As regards the technical security of this

the system can raise doubts whether this aspect can be at all when

abstract the control standards review, when it is not a question of legal or

legislatively-legal but factual. The functionality of technical security

The national health information system can examine up to at the time,

When used in practice and will be carried out. The current system is after this

the correct and the same result is expected for the Minister and the newly

introduced, since that will not be set significantly differently than the system

previous. In addition, the more sophisticated and more stringent data protection.

The implementing legislation, which envisages the provision of section 78 of the Act on

health services, will be for the law to the issue of health

the registry subsequently issued, and adjust the technical issues associated with the

the implementation and management of these registers.



116. by participants are pointing their objections in relation to two of the

nine of the registers, which brings the law on health services, and it

Registry of health care workers and health providers Registry

services. On their defence Minister recalls their purpose, which is to

provide information to the public) for permission to exercise medical

occupations and qualifications of health care professionals, (b)) to the public

information on the number and mix of health care professionals in terms of

demographic (age, gender) and the characteristics of professional, respectively.


qualification criteria (achieved) in relation to the pursued

activities (provider, scope), (c)) the data for international statistics

(e.g. Eurostat, Directorate-General for health and

for consumers, the World Health Organization, the Organization for

European cooperation and development) of the staffing capacity, d) information

and the basis for planning, decision making and predict the number of workers in the

relation to the number of population, recruitment of undergraduate and postgraduate

education, specialisation courses.



117. An extension to the purposes of the registers is their contribution to

the patient, who, on the basis of the data from these two public registers

much will be able to better navigate in the diversity of health services, which

are or may be provided, to choose a provider

health services in your area, including the ability to assess the

such a provider, according to doctors and paramedical

workers these services for a specific provider implemented.

This option, the law seeks to assist the patient in significantly

the exercise of the right of choice of providers of health services under section 28

paragraph. 3 the law on the health services, or where, how and by whom can be

to tamper with his State of health as an integral and essential components of

the personality of every human being. The infected registry also implement

Directive of the European Parliament and of the Council of 2011/24/EU of 9 June. March 2011

on the application of patients ' rights in cross-border health care (cf. Article 4

of this directive).



118. The said law should not stand in the way of baseless opinions

the side of the participants and the public that the collection of data about where

specific doctor earned his expertise, whether lost the integrity or

whether lost competence in medical professions, is

unauthorized intervention in the rights of such persons to protect their personality

or the protection of personal data. The provisions of section 13 of the Act on the health

the services expressly lays down the conditions for the purposes of

does not consider the person behind the wheels. This is a reasonable conditions

the reference to purpose, when it is not honest, the one who committed the crime of intentionally

performance and for him was sentenced to imprisonment in the nepodmíněnému

duration of at least one year, or one who has committed an offence in the

the provision of health services.



119. the opposition of the medical workers duplicates registers the Minister

stating that at present in the Czech Republic there is no single evidence

all health care workers engaged in, or eligible

to exercise the medical profession. There are only partial evidence, for example.

Registry of health care workers eligible for the performance of the health care

the profession without the mentorship and visiting persons, which is referred to in

the law on the paramedical professions part of current

The national health information registry. In this registry are

registered health professionals paramedical professions,

which the certificate has been issued in accordance with Title VI of the Act, and

visiting the person, however, does not include records of physicians, dentists or

pharmacists. The register is publicly available, with the exception of the data on the native

number and residence, missing him but a number of the newly requested features

in particular, for the purposes of statistical monitoring, because it is legally based

for any other purpose. The constitutionality of the register has not yet been questioned.

Further summarizes the registry of physicians, dentists and pharmacists, according to

the law on health care, people are drawn to the personal information needed for

identify the doctor, dentist, pharmacist (social security number, title),

information about education and specialization, the data needed for identification of the

medical equipment, to which the doctor, dentist or pharmacist

working or similar ratio (identification number, name of the Organization

the Department) and the time.



120. the registry today are interlinked and each monitor

partly the same and different kinds of data, which does not have an objective and rational

the reason. It is also reasonable to distinguish medical workers between them

According to whether they perform a medical or non-medical professions. Therefore,

the data are kept about them in the law on health services the same,

unless the nature of the case. Another reason for the keeping of registers is the task

The Ministry of health set in cooperation with universities,

Chambers of Commerce and specialized companies, the number of residential places and calculate

in the future the cost of specialized education and the task of securing an overview of

the number of workers with a professional, specialized and specific professional

a device for carrying out the medical profession on the territory of the Czech

of the Republic. The information obtained from the registry is also used to make an effective

the use of financial resources earmarked for the education of health

professions on the labour market. The above described reasons, purposes or objectives

Clinical registries, which are reflected in the text of the law on health

Services does not monitor and cannot satisfy the registration of doctors, according to law No.

220/1991 Coll., which is simply a list of the members of the Chambers without the necessary

the range of the data. A detailed description of the purpose and functioning of individual registers

the Minister presented in the annex to its observations.



121. any cancellation of the contested legislation of the national health

the information system would mean at least the permanent loss of all

health statistics health health resort

the population, which already works here since the days of the so-called. the first Republic, as well as

even the intervention of the State statistical service (e.g. data on abortion are

the source data for the demographic development of the Czech State statistics

the Statistical Office). You can mark for been almost beyond even the eventual loss of

often dozens of years of collected data, including the data options

compare with the other countries of Europe and the world. Information from registers

because it is used to monitor and analyze the occurrence of the watch

disease and treatment methods in the Czech Republic, while the recorded data

are processed in epidemiological studies, and serves the medical

research. At the same time would disrupt the functionality of the other registers, when

for example. The national register is registered as providers of so-called. health agenda

the departmental registry in relation to basic registers according to the law No.

111/2009 Coll., on basic registers, as amended, and

as a result of its abolition would be impaired function of these registers as

one of the tools to reduce the administrative burden and the public odbřemenění

Administration. That would make it impossible to fulfil international commitments to

international organisations.



122. The emergence of clinical registries is undoubtedly the interference to the constitutionally

guaranteed the right to privacy and secrecy of personal data within the meaning of article. 10

paragraph. 3 of the Charter, but the intervention of the permissible. In addition to the listed legal

and legitimate objectives is given and constitutionally qualified interest in the existence of

legitimate collection of personal data, that is in relation to human

the law, which is all, in a competitive relationship. On the one hand,

so is the right to health enshrined in article. 31 of the Charter, the public

interest in the protection of public health as a public good and on

international level, the obligations arising from the Convention on human rights and

the Charter, on the other hand the right against unauthorized intervention in personal

the realm of the individual in the form of protection against unauthorized collection,

publication or other abuse of the data. The Minister believes that in

the contested legislation is reflected not only referred to the public interest in protecting

public health, but is indirectly protected by the right to specific people

on the protection of health (cf. for example. The national registry of persons excluded from the

blood donation or the national register of occupational diseases). The above described

the sense of the processing of personal data and constitutionally aprobované interests

the company warrant according to the requirements of article. 10, paragraph 1. 3 of the Charter of the effectiveness

even the legitimacy of the management information systems in the health sector, which

It also houses the National health information system.



III./ec



The definition of certain administrative offences under the law on health

services



123. A group of Senators challenged some established administrative delicts

the law on health services, and that, in principle, the ones with which it is associated

the highest penalties of up to 1 0000 0000 Czk. Just above the upper limit of the penalty, the

be deemed ipso facto unconstitutional, is in connection with the alleged vágností

the legal representation of the characters of the merits of the contested administrative

offences considered to be the main reason of unconstitutionality. In this context, the

the Minister notes that the interveners themselves relativizují the seriousness and

the soundness of its reasoning, as the claim that "it is not the role of the Constitutional Court

review the amount of the individual sanctions for administrative offences

or offenses, as set by the legislature, as well as the fact

the law provides only for the upper limit of these sanctions and in accordance with the principles of

adequacy of administrative discretion will be needed to ensure that the chosen

penalties proportionate to the misconduct of the provider of the health

services in that situation, which was in violation of the law ", and

refer to the role of case-law and practice in the application of the new legal standards

tagged facts of administrative offences. This view is

contacts and notes that fully reflects its position, as well as the views of the

The Constitutional Court stated for example. in the award of 25 June. October 2011 SP. zn.

PL. ÚS 14/09 (22/2012 Coll.), the resolution of 24 May 2005. January 2012 SP. zn. PL.

TC 10/09 and the award of 13 April. August 2002, SP. zn. PL. ÚS 3/02 (N 105/27

SbNU 177; 405/2002 Coll.), which correspond with the principle of self-limitation and

minimize interference. In the case of the contested provisions, it is not a blip is that of

limits, in which the legislature in creating the deliktních provisions of the Act

can move, to which it is sufficient to point out for example. that the facts of the

the nature of administrative offences are clear, understandable and concrete, the rate

fines does not have the bottom border, are introduced and not liberační reasons

any breach of statutory obligations is the administrative deliktem.



124. the penalties for administrative offences may be considered reasonable and

fulfilling their preventive and repressive functions. The law contains only

the upper limit of the rate of fines for administrative offences, when a specific amount of


the penalty shall be up to when it is saved in the specific ad hoc proceedings,

While respecting all principles of the imposition of sanctions, as are legitimate

expectations or not completely dismantling of sanctions. The legal range

the rates of fines for administrative offences Act was intended so that the competent

administrative authority in a particular administrative procedure could have a particular infringer

the law to impose a fine in the amount of it from repeat offending

meetings discourages or deters itself, as well as any other

of the infringer, and at the same time you really and truly will feel like

the injury that it has committed a breach of the law. The range of rates of fines for

administrative offences corresponds to the structure, character, property

ratios, the amount of the profit or the size of the providers of health services are

very wide. It is obvious that the amount of $ 10,000 fines will have a different

the effect of a large hospital and another on the so-called. practitioner with one

establishment. Therefore, it is not the lower limit of the fine imposed, but only

the top.



125. The unlawfulness of a particular behavior of people is always the same, whether it

committed by a "small" or "large" health services provider. The rate of

the intervention of the law protected interests are reflected in the evaluation of the intensity of the

populate the merits of tort characters by the administrative authority and

in particular, in the amount of the penalties imposed. Because the law provides a wide range of

the amount of the penalty, the administrative authority when its application fully apply

the individualization of the penalty in a particular control in a particular infringer

the law. Such legislation is meaningful and follows the purpose of actually

punish the guy who is unlawfully, and lead it to this

conduct is not repeated. Secondary participants only refer to the article. 4 (4). 4

The instrument, without which the fundamental right claimed should be contested

the law affected in its meaning and essence. Referred to

While provisions cannot be infringed simply by determining the range of penalties

for the administrative offence.



126. As regards the alleged examples of the interveners, which tries to

to demonstrate the ambiguity and vagueness of expressing an objective administrative page

offences and the inadequacy of penalties for them, the Minister was limited to

the finding that, in the abstract control standards with the Constitutional Court

in accordance with its established practice deals with the ústavností legislation in the

universality and normativnosti, rather than imagined, and examples, eventualitami

Moreover, if that would have occurred, would have been dealt with according to the circumstances of the case

while maintaining the possibility of judicial review of an administrative decision. To

the case of the said interveners, pursuant to which the breach of the obligation

secrecy, which represents the administrative offence under section 117, paragraph. 3

(a). (d)) of the law on health services, may in certain circumstances

the criminal offence of unauthorized handling of personal data pursuant to § 180

the criminal code, however, notes that the institutions for

infringement in the plane of criminal and administrative law in the Czech

the legal order of the usual and normal, while its unconstitutionality was not yet

identifies the. Authorities active in criminal proceedings and the administrative authorities of the

do not make the special difficulties to recognize the difference in the intensity of the negotiations, which may

be a criminal offence and administrative deliktem, therefore there is no reason to expect

problems or when the application of these provisions.



III./ed



The newly introduced the concept of "health services"



127. A group of members that has the by-product of this management position

participant, takes the view that the newly established terminology in the head with the term

"health service" is contrary to constitutional right, as the Constitution and the Charter of

talking about health care. The Minister considers the creation of terminology in the

the law on health services not only for the usual legislative

the technique, but above all it sees a means for clear and

clear understanding of the law on the health services of all its addressees.

One of its key concepts is the "health service". From

its definition according to § 2 (2). 2 and 3 of the law on health services

It appears that this law nerezignuje on the concept of health care, which

work legislation the constitutional right (article 31 of the Charter), but

It integrates into the broader concept of health service [cf. § 2, paragraph 2, point (a).

and the Act on health services)], when health services are in addition to

another means of providing health care by health professionals.

Health care is like the other core concepts of the law on health

services defined in its § 2 (2). 4, its types and forms then in section 5 to

10.



128. Such a procedure has a foothold in the article. paragraph 41. 1 of the Charter, according to which the

can the rights referred to in article. 31 of the Charter claim only within the limits of the implementing

the laws, which implies also divorced the concept of health care when

maintaining its constitutional dimension, the essence and the meaning of in article 21(2). 4 (4). 4

Of the Charter. The Charter or any other constitutional legislation while

do not prohibit nor nepřikazují, in what forms and in what way can the concepts of

and the institutes established in them divorcing in individual laws or

even create new concepts. Among the newly introduced by the law of the

the concepts include the concept of "medical service", which can be considered not only for the

the concept of possible and permissible in relation to the constitutional order, but also

concise. The addressee of the Act on health services, which is in the first place

the patient, receives the first provisions of the Act, the basic information

that health care is a service. The position of the patient in all new

the law forming the so-called. health reform strengthens, which as

the basic way out of health-care reform passed in the selected

terminology, both in terms of content (specific definition) of the concept of

"health service" in section 2 (2). 2 and 4 of the law on health services,

both in terms of grammar and language choice of the word "service".



III./ee



The provision of health services to the appropriate level of expertise within the meaning of section

28 paragraph. 2 in conjunction with § 4, paragraph 4. 5 of the law on health services



129. the objection section 28, paragraph neústavnosti. 2 in conjunction with § 4, paragraph 4. 5

the law on health services, the essence of which is the claim that the right to

the provision of health services to the appropriate level of expertise by

the aforementioned provisions is narrower than the right to health care is provided in the

accordance with the current available knowledge of medical science in the sense of § 11

paragraph. 1 of the law on the care of the health of the people, the Minister said that the basic law

on health care, or on health and life, is mainly protected by the

law, the constitutional order, and is not, and has not been built on

the latter statutory provision. The side next to the participants

violations of other provisions do not, which is to be newly defined law

the patient has been infringed or restricted. As mentioned above, the

The Charter assumes that the laws implementing the article. 31 closer divorce and

define what is health care and health care expenses paid from the public

health insurance. The provisions of § 28 paragraph. 2 of the law on health

in this spirit, regulates the right of the patient to provide

health services on the appropriate level of expertise. This expertise is bound

on the rules of science, recognized medical procedures, the individuality of the patient and the

the specific conditions and objective options.



130. the rules of science are, in the opinion of the Minister, independent from the specific

the text of the law or of the right of the patient to the health services in the

the legal standard, can be described as objective, empirically proven and

certified and their use for the definition of the rights of the patient on the provision of

health services is the expression of a position that the patient can be treated only

such procedures, which are proven, and between experts on them

There is a consensus. Accepted medical procedures are actually a reflection of the

the said rules of science, thus their instantiations on the one hand, and

their enlargement, on the other hand, as regards the medical work

proven and tested interventions, performances, etc. Both of these concepts logically

It belongs to what is typically understood under the appropriate professional level.



131. Health Services cannot be provided otherwise than always and only in relation to the

individuals and it must correspond to the legal definition of the rights of the patient and on the

the provision of health services. For this reason, it was in section 4, paragraph 4. 5

the law on the health services used the phrase "the individuality of the patient"

as one of the relevant criteria and technical standards of

health services. To information on the patient's side must

Finally in the contested definition of proper professional care access concepts

reflecting the reality outside the person and the personality of the patient, although in

each particular case bind to the patient at a given location and

over time. These "specific terms and options", however, may not

podkročit minimum standard of border health

the service, which is based on the other related provisions of the law on

Health Services Act, the specific health services,

the Act on public health insurance, and other laws. To the contested

the definition can also refer to the judgment of the Supreme Court of the SP. zn. 7 Tdo

219/2005, in which the Supreme Court works with the patient's claim

on the procedure of lege artis (appropriate professional level), so that the

a procedure in which a doctor must respect the framework of the rules of science and medical

the ways and within the limits of the scope of its tasks according to work

inclusion of specific conditions and objective possibilities. It is clear that

The Ministry of health as the originator of the Act on health

services and the Parliament, as its creators have made the definition contained in section

4 (4). 5 health services act arbitrarily or arbitrarily, but

came from the earlier definition of lege artis in the meaning of § 11

paragraph. 1 of the law on the care of the health of the people by the Supreme Court.

There is thus a fundamental or even fatálnímu a shift in its understanding of the

or to a reduction of the standard in relation to the patient. Finally, it should be

point (i) article. 4 the Convention on human rights and Biomedicine, in accordance with

that any intervention in the area of health care, including the scientific

the research is to be carried out in accordance with the relevant professional

the obligations and standards, which also corresponds to the concept of "the rules of science and

accepted medical practice "under section 4 (4). 5 of the law on health

services.




132. On the above basis, the Minister notes that the definition of the rights of

the patient to health care on the level of expertise is appropriately balanced and

is not contrary to the constitutional order or the international conventions, which is

Czech Republic is bound. Only the edge adds that the definition of the scope and

the content of the rights of the patient to the health services in no way affects his rights

on compensation for personal injury, which eventually can be in providing

health services caused by. The law on health services is not

the basic law, that the refund of such injury. Toughened restrictions

or reduction of the rights to compensation for injury, which may be in the provision of

health services caused, it is speculation and for the review of constitutionality

the contested legislation is not relevant, because the subject of the review

There are laws governing the right to compensation for damages or

liability for injury or damage at all.



133. Referred to the argument is relevant in relation to the objection

the unconstitutionality of the provisions of § 45 to 47 of the law on health services,

which side the participants complain that they do not have the obligation to treat

the patient the best possible and in a timely manner.



III./ef



Further objections



134. the interveners challenge the Law Institute of the so-called. previously

express the wish pursuant to § 36 odst. 5 and 6 of the Act on health services.

The namítanému restrictions on the validity of previously express wishes for five years

the Minister stated that its purpose is the protection of patients. During this time,

can lead to a fundamental change in the circumstances on the part of the patient, which

may not be the providers of health services nothing is known (and therefore cannot

proceed according to § 36 odst. 5 of the law on health services), including

progress in medicine. Patient information that was current at the time

He has made previously expressed wishes, so it may not apply, and may be

very likely that after five years they will be at least partially

obsolete practices that were commonly used at the time saying that

wishes and which were known to the patient. The restriction of the validity of the previously

express a wish or cannot be considered unreasonable or inappropriate

or ineffective. Unlimited validity, moreover, is highly debatable among young

people who can make use of this right, even if in some cases

the impressionable and certainly do not have enough life experience. They should not

therefore be exposed to their previously expressed wishes will pay

for the rest of their life. Remaining to be delivered, that the patient is nothing to prevent,

After the expiry of a period of five years previously expressed wishes or restored

changed its content.



135. The prohibition of the use of options previously has issued a wish in the case of persons

minors or deprived of legal capacity reflects the

related legislation, according to which such persons may do only

such operations, which have the intellectual and moral maturity. Otherwise, it is for them

amounts, if any, legal representative. The provisions of § 36 odst. 6 of the Act on

health services counsel denies that these persons

He has made previously expressed wishes. Again, the reason is the protection of the patient, which

It is a legitimate and important whereas, what legal and factual

the consequences can have on the life of the patient's wishes.



136. As regards the objection in relation to section 35 of the Act on health

services, the Minister pointed out that the paragraph 2 (a). (b)), according to which

minor patient who had reached 15 years of age, the health services

provided by the authorising service provider to provide without detection

the consent of the legal representative, if the legal representative of such a procedure

expressed written consent, which may make subsequent informing about the

provided by the health services. This written consent is part of the

medical documentation kept by Alex to the patient. Together with the

the obligation to respect the opinion of the minor is the refutation of the claims

the side of the participants about the meaninglessness of legislation providing

health services to minors, with regard to assistance to the parents. Is

of course, that the accompaniment or consent of the legal representatives is not required for

health services provided by the authorising service provider. It

does not apply in the case of the treatment of the minor in the hospital, where,

that may be a more serious intervention into the health of the minor, or to the

implementation of more stringent performance, health, and where, therefore, the legal

the representative should not be missed, whether its consent or presence.



137. the provisions of § 35 paragraph. 1 and 2 of the law on health services is

is also fully compatible with the article. 6 (1). 2 the Convention on human rights and

the Charter, which provides that "the opinion of the minor will be taken into account

as a factor, whose binding force is increasing in proportion with age and the degree of

maturity ", or with the article. 12 paragraph. 1 of the Convention on the rights of the child, the famous

under no. 104/1991 Coll., which stipulates that "States which are Contracting

party to the Convention, provide for the child who is capable of forming his or her

own views the right to express those views freely in all

matters that concern it, the views of the child must

devote the appropriate attention corresponding to his age and level. "



138. The inconsistency of section 48, paragraph. 1 and 2 of the law on health services with the constitutional

order fro side participants in that the patient does not have the option of

defend yourself against the decision of the provider, which refuses to accept the

the patient's care or ends care about him. The Minister has considered that this

the provisions defined grounds for refusal of admission into care or their

care are legitimate, sensible, reasonable, and adequate. Reflected in them

the need to balance the right of a patient to the health service and health care

the one hand, and the rights of other patients the same health provider

services, who would be unbearable burden on health services provider

could be harmed by [section 48 (1) (a) and (b))) of the law on health

Services] as well as the right to health services provider get for

given the care paid to, which has, after all, a foothold in the article. 26 paragraph. 1

Of the Charter, even in the case that is subject to the payment of public health

insurance [section 48 (1) (b) (c)) of the law on health services]. It is

does not apply to the so-called. urgent care. The reasons reflect the will of the

the patient [section 48, paragraph 2 (b) and (c))) and the law on health services]

objective fact [section 48, paragraph 2 (b)) of the law on health

Services] or protects other patients before nedisciplinovaným

the patient, whose behaviour is endangering [section 48, paragraph 2 (b), (d)), the law on the

health services]. Finally, the law provides that the health services

cannot be adequately or properly to provide, if the patient does not provide

synergy. In this case, not the provider of health services

fairly forcing to continue treating the patient who provided the service

without rational reasons for refusing [section 48, paragraph 2 (b), (e)), the law on the

health services]. To do this, however, should be noted that the termination

care must not result in an immediate threat to life or serious

damage to the health of the patient. Even when they are, therefore, given the above reasons

for their care for the patient, this is always protected so as to avoid

irreversible changes in his condition, which could lead to death or serious

threats to health, and even against his will.



139. Grounds for refusal of admission of a patient to the care or its termination

assessing the provider, in the event of refusal of admission to the care or

their care under section 48, paragraph. 2 (a). (d)), and (e)) or of refusal

the provision of health services under section 50, paragraph. 2 of the law on health

services in specific cases, issue a written report to the patient, in

which is the reason for which this occurred. All these cases are

Thus reviewable in the reasons and justification and correctness of their

the use, whether a program or the relevant health insurance rights.



140. The provisions of section 50, paragraph. 1 (a). (b)) of the law on health services,

that allows the medical worker not to provide health

in the case of services, it should provide an immediate threat

his life or a serious threat to his health, protect the life and health

the health of the worker as a person who has as well as the patient

the right to the protection of life and health, within the meaning of article. 6 (1). 1 and article. 31

Of the Charter, and whose lives and health are not less valuable than life and health

the patient. It is not acceptable nor reasonable in comparison with all the other

fundamental human rights and freedoms, to a health professional

the law forced to threaten their life and health, even if it was because of the

the protection or rescue of the life and health of the other. In this context, the

the Minister said, adding that not only the law on protecting life and health services

the health of those who save and help others, and pointed out for example. to section 58

paragraph. 1 of law No 273/2008 Coll., on the police of the Czech Republic, which

contains a similar rule.



141. in relation to section 50, paragraph. 2 of the law on health services, which

allows the medical worker refuse to provide health

patient services in the event that their provision would be contrary to his

of conscience or religion, the Minister noted that it is the result of

balancing between the duties of a medical worker to provide the care and

assistance on the one hand, and the right of the worker to the same medical

freedom of conscience and religion guaranteed by article. 15 of the Charter. In addition, never

cannot endanger the patient's life or a serious threat to his

health, since in these cases, not a health professional

the provision of health services by reason of conscience or religion.

In the opinion of the Minister can be predicted that the provision will not

practice too used and essentially will cover in particular cases

thrown by the obligations to respect the previously expressed wishes within the meaning of § 36

the law on health services.



142. The legal adjustment of the management of medical documentation according to § 53 and 54

the law on health services is accused of having poorly protects its

a physical form. The former provisions, however, provides that the

medical documentation must be treated according to the law on the health

services and other laws, which need to be sorted and the law on the protection of

of personal data. The management means and protection of medical documentation


before the tampering, theft, destruction, etc. You can also

to draw attention to the obligation of health care professionals and providers

health services keep confidential pursuant to section 51 of the Act on

health services, medical documentation, respectively.

the information, whether in paper or electronic form, also protects.

Breach of confidentiality can meet the characters of the crime

unauthorized handling of personal data pursuant to section 180 of the criminal

code.



143. the provisions of section 14 of the Act on health services, the governing person

the so-called. professional representative, is rozporováno, for the interveners

in their view, it does not address enough, for what is a professional representative

responsible. In this case, however, it is not clear in what way would this provision

It should be unconstitutional. Responsibility of the representative in accordance with the legal

the standards of the civil law, criminal law and it is not working on

without prejudice to the health services. No provision of the constitutional order

While forcing the legislature to ensure that in all circumstances and for

any function or position in a particular law shall determine or

modifies, explicitly and specifically to the General legal provisions set

a new kind of liability.



144. the last plea, according to which the law contains inaccuracies that

would lead to different interpretations and that may become the basis for different

binding the Minister considers the illegal conduct, so indefinite and

imprecise, that it is not possible to define the relevant arguments. On

the basis of all the above reasons, so the Minister concluded their observations

Noting that, in its view, the contested act is not inconsistent with the

the constitutional order.



III./f



The observations of the Office for personal data protection



145. the Office for the protection of personal data is expressed through its

RNDr. Igor German President to that part of the proposal of the Group of senators, which

directed against the national health information legislation

the system. In its observations of 24 April. February 2012, said that the Office

considers it necessary, in order to create or change any similar

public administration system was preceded by evaluation of the impact of the privacy

citizens. He's not known, however, that in some stage of the legislative process

such evaluation has occurred, which outlined the reasons for the newly proposed

system, the pros and cons of the existing solution (the existing registers)

justification necessary changes, or a comparison of the practice in other European

countries. Such assessment is required and, for that reason, the Czech

Republic has consistently missed even one of the options offered by the directive

The European Parliament and of the Council 95/46/EC (recital No. 54 and article 18 to 20),

each comprehensive biodata information system deployment State

He was provisionally assessed carefully.



146. fabric under consideration includes the processing of large amounts of personal and

sensitive data, therefore, must be that it must be based on the

clear and unambiguous statutory adjustments to deliver the constitutional

clause and the imperative of public law at the same time, that the exercise of State power

must be carried out within the limits of, the manner and means provided for by law.

In this case, the laws typically do not give citizens the possibility to edit

conditions for the processing of their personal data, citizens must act mandated

the procedures. The processing carried out on the basis of legal empowerment

covered by an exemption from the registration requirement under section 18, paragraph. 2 of the Act

on the protection of personal data. As regards sensitive data (e.g., on health

the State) are the basic legal conditions for their processing listed in

section 9 of the Act on the protection of personal data. With regard to the reference to the Special

the laws referred to in its paragraph (c)) and by analogy with regard to the form of

the pronunciation of the consent of the Office interprets this provision in your practice so that the

to the processing of sensitive data in health care can only occur for the

the law explicitly and very clearly defined conditions. Some support for

restrictive interpretation of the privileges of State institutions for the processing

sensitive data in the health sector is to be found in Recital No. 33 and

and article 34. 9 of the above directive.



147. the Office considers that the contested legislation for existing contrary to

the premise that the processing of personal data must be lawful and

fair to the individuals concerned. Must therefore relate to the data

adequate, relevant and not excessive in relation to the purpose of the processing. The purpose of the

processing of personal data by the contested provisions, however, they do not

the closer the elucidated or declared. It is not justified by the effectiveness of centralized

the concept of compulsory storage of sensitive data of the citizens nor the merging of

some registers used a separate research and medical purposes

Instead, in the necessary cases, transmitted or shared only

the necessary information. An example is the new national register of reproductive health,

that combines five existing registers: national registry of maternal,

National registry of newborns, national registry of birth defects, national

registry of abortions and the national registry of assisted reproduction. Time

the retention of data in these registers was without any explanation and

justification extended to 30 years.



148. The words management, implementation and acquisition are very generic equivalents

the processing of personal data, which do not express nor a substantial

requirements or limit the processing. This deficiency cannot replace the

simple enumeration or mutual combination of categories of eligible institutions, sets

the data and permission for the transfer (requiring and transmission) of certain data

discussed in other parts of the law, on which the Office has already pointed out in the

their comments on the draft of the contested provisions, when pointed out on

the defective structure of the national health information system in terms of

policy processing and protection of personal data, when and redundancy

the definition of this system. With regard to section 9 of the Act on the protection of personal

data, the absence of a clear purpose of processing sensitive data

heal or podzákonný a prescription, even though he described the sebepřesněji sub

operation with the data.



149. As regards the argument concerning the keeping of lists of doctors, dental

doctors and pharmacists under section 72 of the Act on health services, in this

the point is considered the authority of the leadership of the two identical purpose registers (lists

persons) for the unreasonable, and, moreover, in the amount of neúměrném purposes

processing. The proposed provision leads to duplicate processing

personal data, which has already lead the Chamber. They need without the Central

administrative offices work with these data, you can set up how their

request, share data. Recalls in this context the principle of

eGovernment, in which there should be only one authorized site with

the current data.



150. Beyond the reasoning side of the participants, the Office States that the

the justification of the Government's draft law on health services completely leaves out the

the question of access to the data stored in the registry and their security

from unauthorized accesses and abuses. Because it is proposed to retain the

and gather information, which are often copies of medical

documentation, there is a proposal on data processing in electronic

systems and on the Internet of a significant risk to the privacy of citizens. In

complex information systems is not sufficient to apply by analogy

statutory provisions relating to the classic, or local inspection

the paper medical records.



151. In conclusion, the Office notes that the definition of the national health

information system be considered sufficiently general, that it is not clear whether and

How should change substantially still valid collection of personal data

in the health sector, which was founded in the 1960s. years past

of the century. The present intention then it cannot without clear information policy towards

citizens contribute even to enhance legal certainty, trust and ethics in the

the field of public health. The main shortcoming of the Act shall be deemed to

the Office very general focus on the overall framework of the information system, without

It would have been appropriate and defined specific procedures for processing

sensitive data of citizens and justified their need for

long-term storage in the registry and the need for pooling or sharing of

sensitive data across registries. The experience of other European States

show that, for the purpose of which is to achieve a national health information

system, sufficient database of clinical studies conducted by medical doctors and

the professional workplace, either with the consent of the patient, or anonymously.



152. the Office of the President said their observations by letter of 14 July 2004. March

2012, part of which were the comments of the Bureau on the proposal of the

the transmission of personal and other data to the national health

information system, national register of providers, the national

registry of health care workers and for the needs of the management of the national

health registers. The draft decree in it has declined as a whole. At the same time

a number of objections, reproduced pictures which applied even in his original statement to the

This control.



III./g



The observations of the respondents of the professional chambers



153. the Czech Medical Chamber is the expression of the day 2. February 2012, which was

signed by its President MUDr. Milan Kubkem, still basically

with all of the objections against the law on the health services in place

the claimant and a group of senators. According to his own statement is

even alone. Beyond their brief summary only

adding that their objections about the possible effect of the retroaktivního of § 121

paragraph. 1 and 5 of the Act on health services originally accepted the Minister

the health sector and the Legislative Council of the Government. The proposal law

assumed that the holder of the registration of non-State medical

the device will become the date of its effectiveness by the provider of health services,

without that had to be decided in the administrative procedure. To change, however,

occurred when discussing the Bill in the Chamber of Deputies, when the

on the basis of the amendment approved by the just challenged.



154. the Czech dental Chamber considers the collection and retention of

data on patients and health care workers (in their case

Moreover, even the publication) for the unique interference in their rights to

Informational self-determination as understood by the Constitutional Court and the European Court of


human rights. As is apparent from its observations of 22 October. February 2012

signed by its President MUDr. Pavel Chrzem, the Chamber does not consider

unwanted content and the existence of adequate and reasonable scope

health information system, whose purpose is to monitor the

the health status of the population, obtain information about the activities of the

providers, about the extent and quality of the services provided and for the management of

health care and health policy of the State. The impugned legislation

in terms of the article, however, does not hold water. 8 (2). 2, of the Convention, for the handling of

the mentioned data does not match its parameters, or the requirement that the

intervention into the basic law was a reasonable purpose. The problem is the

duplication and lack of substantive reason in particular (or collection.

disclosure of sensitive information about patients), as well as on medical

workers. The Chamber further noted the incongruity of Interior design

a group of senators who left the party to the whole of annex of the Act

governing the national health registry. This annex while

contains significant and unreasonable provisions on the scope of the

processing of personal data of patients.



155. As regards the additional comments of the Group of senators, approached the Chamber

does not share the conclusion of the neústavnosti in the law on health services included

Edit administrative offences, even complains that clutter and přebujelost.

In the future, resulting from the interpretative problems will undoubtedly have to deal with

and the administrative courts. It also does not agree with the proposal on the cancellation of obligations

the so-called. Re-register the. Although from the beginning it refused and did not agree with her,

as it represents a significant administrative burden for all existing

the operator of health care facilities, adopted resolution considered

constitutionally Conformal. The alleged conflict with the right to entrepreneurship in the meaning of article.

26 Instruments consist in the fact that existing operators shall cease to

the activities of the permission to the law just the end of time. So in the

not really, since the submission of the application for the grant of a new permission in

the operators shall ensure that the prescribed time limit, the new permissions will be

immediately on the existing permissions. On the contrary, Chamber

draws attention to the negative consequences of what it would be for the provider should

the immediate annulment of the contested the transitional provisions. This would mean

the existing operators to provide without further deprive

health services.



156. The possibility to comment on the proposals and took advantage of the Czech Chamber of Commerce, said

According to which is the abolition of all the provisions of the contested design senátorským

the law on health services. In its opinion of 16 May 2002.

February 2012, signed by the President of this Chamber PharmDr. Lubomír

Poverty, pointed out the absence of factual reasons for collecting and

the publication of data about people to such an extent as is by law the newly

the modified national registry of health information. The amount of the penalties for

the individual administrative offences shall, in accordance with the proposal for the

unreasonably high. In principle, agrees with the criticism in relation to the

the obligation to re-register, however, does not agree with the argument of side

the participants in the current nine-month time limit, the operator must

present, together with the applications for the issue of the permission also have already submitted

evidence of their professional competence, compliance with the conditions and

technical competence, approved the rules of operation, etc. According to its

the opinion must request, which may only be submitted within 9 months from the

the effectiveness of the law, only contain the particulars referred to in section 18, paragraph. 1 of the law

of health services, and not also the annex referred to in paragraph 2.

In the absence of such provisions, to the abolition of this Chamber intends to promote

It is this interpretation. Indeed, cannot admit that the current

According to the provisions of § 121 operators forced to submit to the submission

the request also all attachments, whose preparation is time consuming and financially

very demanding. Even from this argumentation follows the uselessness of the whole process,

which is the name of the re-register.



III./h



Additional observations



157. On 15. March 2012 was the Constitutional Court delivered a letter to amicus

curiae civic association Iuridicum Remedium, based in Prague 9,

Vírská 14/278, whose attachment to the opinion of the Association consisted of

the constitutional conformity editing national health registers under the Act on

health services.



IV.



A replica of the plaintiffs and minor participants



158. The Constitutional Court referred to the complainant and the observations sent by the side

participants in the event that they wanted to replicate them. Proponents of this

the options used to filing of 13 June. April 2012, which through

his agent responded to the representation of the Chamber of Deputies, the President of the

the Government and the Ministry of labour and Social Affairs.



159. the representation of the Chamber of Deputies indicated that it does not address at all

objections to alleged violations by pointing to the constitutional kautel

the democratic legislative process. With the conclusion that the contested Law

they were adopted after duly carried out by the legislative process, identify.



160. For the pointless or insufficient on tagged argument of the President

the Government, which his conclusion about constitutional conformity of the legislative process against

the fact that the Government has not proposed nor the approval of bills already in the

the first reading, even when their enforcement could again

abuse of a State of legislative emergency and summary hearing Institute. Whether or not

his claim that, in the case of the contested laws existed sufficient

time to their parliamentary debate and public discussion, to

of them, only to create the appearance that the legislative process was proper

in a way. The plaintiffs in this context, briefly summarize your already

applied core objection, and stressed that the Government's most

consistently used or even abused the cumulation of the legal institutes

allowing for the time of their discussion in the Chamber of Deputies.

Classification of bills after their refusal or return of appeal

the ongoing meeting of the Chamber of Deputies over the objection of at least 20

Members, as well as the subsequent discussion of how they are themselves

sufficient grounds for conclusion about the violation of legal rules, the adoption of

laws with implications on the entire dopadajícími constitutional konformitu

the legislative process. The intensity of their protiústavního action was

In addition, increased by the fact that already in the earlier stages of the consideration of the contested

the laws were in the Chamber of deputies to a substantial restriction options

individual members and the opposition expressed to the Government, these templates

submit to them amendments and navigate in real

time served in rapidly to extensive amendments of the Government

members.



161. Přisvědčit according to their opinion, but you cannot further his claims.

His claim that the length of the period is proportional to the extent of the foresee and importance

the changes that the proposals bring, is entirely baseless and

paušalizující, because with the exception of one were all laws promulgated

It was only in December 2011, with seven of them already took effect on January 1.

January 2012 and some provisions to an even longer day

their publication. It also concluded that the laws were discussed in both

Chambers of Parliament in compliance with all the limits of the standard

the legislative process, it is not true. Whereas the Government

submit proposals to produce laws fairly late, so that they can be

in respect to the rights of the opposition and each of the members actually properly,

i.e.. without a significant reduction of the time limits discussed in the Chamber of Deputies,

the Government has confined itself most when you return or the refusal of Senate proposals to

the unprecedented way of discussing these bills, in particular if

as for the restriction or disablement of the debate and the options for members

in detail to meet increased bills and comment to

their content. It is not essential that at this stage of the legislative

the process has already been possible to submit amendments to draft

the laws, because the constitutional requirement of conformity applies to all

its stage. Against the assertion that any parliamentarians-koaličnímu or

opozičnímu-not in the negotiation phase of the contested laws denied

the opportunity to present material, indicate that was denied

a total of 25 members of the opposition political groups and one

nezařazenému. In this context, point out specific instances of

Members, who are from legitimate (e.g. family or work)

the reasons for the law not to comment on any of the three reading discussion

laws in the House of Commons.



162. The plaintiffs stress that they do not undermine the autonomous Institute

the decision of the Chamber of Deputies, or even its ability to receive

laws, but only seek the repeal of laws that have been in their

beliefs in a way that violates constitutional standards adopted to protect

the democratic nature of the legislative process. In conclusion to this part of the

representation of the State, in its proposal, no doubt they took the burden of

the claim of unconstitutionality, therefore it is the opinion of the Prime Minister, pursuant to which the

This proposal completely incapacitated the litigation consulting, nonsensical.



163. As regards the representation of the Ministry of labour and Social Affairs,

consider it internally contradictory and containing false, distorted and

misleading information. Later, however, reflect only some of his

parts, as part of the Ministry's reasoning for them clearly

their original proposal already disproved.



164. In the first place does not agree with the conclusion that a change to the Institute of public

the service was not significant, or that overall there has been a change in the meaning of,

the purpose and the conditions of its implementation of the original edit, which has not been

the perspective of the possible unconstitutionality of not being challenged. The appellants argue that

Law No. 366/2011 Sb. There has been a fundamental change in the nature of public service,

as they expanded the circle of persons to whom it may be made, even on

job seekers and lift the bonuses for its performance. By law No.

367/2011 Coll., amending Act No. 435/2004 Coll., on employment, in the

as amended, and other related laws, was then determined

the new maximum range of compulsory public service for 20 hours a week and have been

introduced sanctions for its refusal, i.e.. removal from the register of job applicants


employment, followed by the withdrawal of unemployment or

support for retraining, the withdrawal of benefits, assistance in material need and the emergence of

the obligation to pay insurance premiums on health insurance. These

the institutes of the previous legislation did not contain, therefore, was not

questioned its compliance with the constitutional order.



165. While the current definition of the public service to help revitalise

long-term unemployed persons, and its performance was for these people

the incentive, which is passed into the great interest about her, at the present time

This interest has dropped. As a consequence of the fact that its performance is not associated

no reward. In addition to her performance may be ordered even in the event of

in the short term unemployed persons, basically immediately after registration

job seekers, taking after two months is threatening that person in

the case of a refusal of the disposal of evidence. It is obvious that in these cases the

public service is not used to its basic purpose, and to preserve the

the working habits of the person concerned from the previous activity, respectively.

prevent its exclusion. These effects occur

usually when the medium-term or long-term unemployment.

The appellants suggest that the Constitutional Court's requested from the Ministry of

information about the functioning of public services, in practice, to provide

statistical data on how many people it has carried out in the public service

October, November and December 2011 and January, February and March, 2012,

How many people was due to the denial of public services in registration of candidates

employment of retired, or even whether some people have

the combination of the performance of public services and the obligations of the Czech Point

[system DONEZ ("attendance unemployment")]. the combination of performance

nekolidujícího employment and public services. To consider and propose

request a representation of some other organization or mimovládních

public defender of rights.



166. In relation to the international comparison, which is contained in the representation of the

the Ministry, the plaintiffs point to the omission of the fact that it is in the

all of the above States associated with the performance of work, remuneration, respectively.

relief for a person who performs the work. Also, the scope of the work

held in those States in the framework of the public service is compared to the home

legislation, which is a boundless, significantly limited.



167. The Ministry is not nevypořádalo is the core argument of the

the plaintiffs, that the contested regulation is not in accordance with the prohibition of

of forced labour. As to the basic law, it is not necessary for the implementation of the

the implementation of the law, and the natural person concerned can seek protection from

forced labour or service not only in the framework of the law that the prohibition of

of forced labour. In determining whether the public service is compulsory

work, it is necessary to come out of it, what bodies shall conclude the appropriate

the Treaty, which is their mutual status, what is the subject of the contract and

What are the mutual rights and obligations of the participants. Referred to illustrate the

a comparison of mediation and the mediation of public service employment.

Logging in to the registration of job seekers natural person declares

their interest to obtain appropriate employment and at the same time, the fact that it

with their own forces so far could not be found. The objective of the register is to help

candidates with its possession. Suitable employment, meanwhile, within the meaning of section 20 of the

the law on the employment of means of dependent work in the employment relationship

or on the basis of agreements on work conducted outside the employment relationship. On his

mediation by regional branches of the Office work has applicant entitled,

While she is obliged to provide the necessary synergies and ensure its

guidelines for employment (article 19, paragraph 2, of Act No. 435/2004

Coll., on employment, as amended by Act No. 73/2011 Sb.). If so

He makes removal from the register of job seekers. Office work

It is on the basis of the law shall be entitled to decide on the rights and obligations of

job seekers, exercises State power against him, therefore, is the mutual

the relationship of these bodies dedicated to relationship, IE. superiority and

subordination. If the Labour Office provides appropriate candidates

employment, the applicant is obliged to accept this job, except in the case

When would he have prevented the serious reasons. A contract of employment or an

of the agreements on the works held outside the employment relationship, however, between them

concluded the candidate and a potential employer, and these bodies

are equal between themselves. The employer is not entitled to decide on the

rights and obligations of the applicant.



168. The law on employment, on the contrary, does not speak about it, that the applicant has the right to

on the mediation of public service. Contractual autonomy, to which

refers to the Ministry may apply only where there are both

the bodies of the legal relationship equal and one cannot in the legal relationship

authoritatively to decide on the rights and obligations of the body of the second,

or, if they are not equal if the subordinate bodies of the body may

to exercise the right and stronger body is obliged to exercise this right.

If the decision is not a child of the body of its right to, and should not be

to change his earlier legal position for the worse. However, if the

the child entity in the legal relationship to and with its

failure may occur to change legal status associated with the negative

the consequences of contractual autonomy cannot be considered at all. Embark upon a

These consequences is in administrative law considered the power of compulsion to

the proper performance of the obligations. Because the job-seeker is obliged to

follow all the time, and therefore also in the mediation of public

services, the instructions of the regional branches of the Office work and for the rejection of its performance

under threat of eviction from this evidence, it is evident that he has no contractual

autonomy, but on the contrary, the legal obligation of the Treaty concerning the exercise of public

to close the service. The result is that the candidate bid public service perceive

as instructed by the employment office, which is binding for him, and in the case of his

failure to meet the expected penalty.



169. The Ministry acknowledged that the performance of the public service is essentially a performance

dependent work, therefore, must be the one who performs it, the right to

fair compensation for work within the meaning of article. 28 of the Charter. Whereas,

the legal adjustment of nezakotvuje any reward for the work done in the framework of the

the public service, but § 18a, paragraph. 1 of the law on assistance in material need

on the contrary, expressly states that, in the performance of public services does not belong, you can

This condition can be considered as intervention in the very nature of the rights.

While the voucher does not stand up to the economic crisis, as in the Czech Republic

the State of the economy of our State is not currently so negative,

to justify the complete denial of payments for persons who

performing work in the public interest. The requirement to maintain the essential

the base of the right to equitable remuneration for the work would be done,

If the performance of the said work has been granted a reward, even if it was

less than the minimum hourly wage.



170. Also not to be overlooked, that unemployment is the dose

derived from the previous participation of the person to the insurance in case of loss

employment and for providing this implementation should be the law exactly

the conditions that should not be in the course of providing this

benefits on the basis of random facts changed (i.e. on the basis of the free

consideration of the Office's work, whether a specific applicant public service

conveys or not). The tenderer in receipt of unemployment benefit

He won this title already on the basis of the facts arising

in the past, because after a fixed period, diverting from the previous

employment or other employment insurance covering the case of a

adverse social event, which is the loss of a job. From this

because after it cannot reasonably be required, during a receive

These benefits provide again "deserved" the exercise of public

the service. Most of the people who receive unemployment benefits, plus

not receiving benefits in material need, which the Ministry considers it

fair compensation for the work. Assistance in material need is implementation, which is

State to the person that is in material need, provide to the

provision of basic living conditions. With regard to the article. 30 paragraph. 2

The instrument should not be granted on the basis of the principle of zásluhovosti,

but on the basis of the principle of necessity. In other words, help to ensure

elementary living conditions should be provided on the basis of the

the principle of necessity, however, nothing to prevent legislators, to beyond

ensure the elementary living conditions increased the amount provided by the

assistance on the basis of the principle of zásluhovosti. Finally, no

the argument that the person to whom the public service offered was not receiving the same

performance as a person who performs a public service and has the same right to be

included in the registration of job seekers, this fact is

the vast majority of job seekers main poor living

factor, which is currently from public service performance discourages.



171. In conclusion his representation the appellants argue that according to the valid

the legislation, the Office may require job seekers work performance

public services up to 20 hours a week, however, the law provides

the maximum possible length of the performance of a public service in this range or ban

its overlapping with the power of nekolidujícího employment (employment up to a maximum

on half of the fixed working hours with a maximum of

half of the minimum wage-cf. § 25 paragraph. 3 of the law on employment)

even the prohibition of overlapping public service performance with the obligation to report in person to the

Czech Point. Already, taking into account the fact that the candidate for this job

does not receive any remuneration, as well as to that time range, you can

the public service can be considered as very heavy, which would, in the case of both of the above

given the situation was even more. According to the plaintiffs, would be constitutionally

Conformal legislation had to establish the limits of the administrative consideration of the Office's work

in the public service, for the applicant to disproportionate

the bad was not. The current legislation, in its sole discretion while borders

arbitrariness of the administrative authority in the exercise of State power, which is provided for in the Charter of

inadmissible.




172. A group of Senators the ability to replicate observations to their design

did not use.



173. A group of members that has the by-product of this management position

the participant, in its representation of a briefly stated that identifies with the

the argument of the plaintiffs and a group of senators, as well as the expression of the Senate.

It also has no objection to the expression sent to the Czech Medical Chamber,

The Czech dental Chamber, the Czech lékárnickou Chamber of Commerce and the Office of

protection of personal data. On the other hand, do not agree with any of the

The Chamber of Deputies, the Prime Minister, the Ministry of labour and social

Affairs and the Ministry of health, the opposition already but also

It does, and with reference to the above comments, as well as

your own argument contained in its own proposal.



In the.



Oral proceedings



174. The Constitutional Court, in accordance with section 44, paragraph. 2 of the law on the Constitutional Court

requested from the parties to the proceedings consent to the abandonment of the oral proceedings,

However, this consent was not granted by the group members, which is in the

This control position of the intervention. For this reason, it was in

the case ordered the hearing on the 27. November 2012. Oral proceedings

participated as a representative member of the Jerome Tejc plaintiffs, lawyer

J. M. as the representative of a group of senators, Senate Vice-President Alena

Deputy Marek Benda gajdůšková, and as a representative of the Chamber of Deputies,

which authorised the President to represent the Chamber of Deputies. For

a group of members that has the by-product of this management position

participant, no one did. Its representative from apologize in negotiations

the day of the oral proceedings. Because this group only lasted for an oral

the meeting and the Constitutional Court might otherwise order the oral negotiations, nenařizoval

the President of the Constitutional Court by a resolution of the riot group measures members

under section 61, paragraph. 1 of the law on the Constitutional Court in the amount of 100 000 Czk. In

during the oral proceedings, the judge asked a Jan Musil query shortcuts

The Chamber of Deputies, if any of the contested law does not contain

technical shortcomings, which would have required the adoption of the amendment's to their

the deletion. The representative of the Chamber of Deputies the existence of any

technical deficiencies did not rule out, however, in the case of any of these

the laws might not be adopted their amendment in the course of weeks or months

after their adoption. Subsequently, the representatives of the parties and groups

Senators expressing the contents of its previous "Latvian. The representative of the

a group of Senators said that in the case of a proposal for the repeal of § 121

paragraph. 1 of the law on health services was the cancellation of the first

the sentence in the words "for a period of 36 months from the date of entry into force of this

of the Act, unless the context otherwise requires; This person shall be deemed to

provider. "and the second sentence.



VI.



Assessment of the competence and constitutional conformity of the legislative process



175. The Constitutional Court notes that the applicant also submitted proposals

secondary participants comply with the formalities laid down by law,

No. 182/1993 Coll., on the Constitutional Court, in wording of later regulations, therefore

Nothing stopped their factual assessment.



176. Under section 68, paragraph. 2 Act No. 182/1993 Coll., on the Constitutional Court, in

the text of Act No. 48/2002 Coll., the assessment of the constitutionality of the law, with consists

the constitutional order, or other legal regulation and the laws of the

the three components. This is the question of questions, whether the law or other

legislation was adopted and published within the limits of the Constitution laid down

competence, whether it has been accepted by the constitutionally prescribed way and whether its

the content is in accordance with constitutional law, and in the case of other legal

Regulation and laws.



177. In the case of all the contested law is outside of any doubt,

the Parliament had in the meaning of article. 15 paragraph. 1 of the Constitution, the competence to

the adoption. Even before the Constitutional Court went to the assessment

the legislative procedure, considered it advisable to recall that is in

This type of control is bound by a proposal to repeal a certain law

or its part, only as regards the extent to which he has referred to it

the plaintiffs ' cause, but not his reasoning. This means that to

a review of the contested legislation may be accessed from other than

the claimant alleged grounds [cf. find dated July 3, 2000.

Zn. PL. ÚS 18/99 (N 104/19 SbNU 3; 320/2000 Coll.), the discovery of 30 June.

April 2002, SP. zn. PL. ÚS 18/01 (N 53/26 73 SbNU; 234/2002 Coll.)].

Referred to the basis apply in assessing not only the content, the conformity

the contested legislation, but also the constitutionality of the procedure of its adoption.

However, it cannot be inferred from that review occurs each time from the

in respect of all eligible objections or possible

derogačních reasons [cf. mutatis mutandis find dated November 3,

2009 SP. zn. PL. ÚS 29/09 (N 233/55 SbNU 197; 387/2009 Coll.), paragraphs 98 to

100]. Such a review would in most cases not possible

consistent and exhaustively perform and any acceptance

different concept would involve only the founding fiction, which should not

no reasonable justification. It would result in a restriction

options to make in relation to the contested legal regulation were later

applied and other (than not yet assessed) reasons for its possible non-compliance,

which would particularly in cases of specific control of constitutionality may result in

against an individual to deny review of the constitutionality of the law in terms of

concerned fundamental rights and freedoms.



178. Referred to is also reflected in the extent to which the Constitutional Court in the case

examined the constitutionality of the way of the adoption of the contested acts and which corresponds to the

the following summary is applicable to him the relevant facts. In

its review is thus dealt with the particular objections put forward in the proposals

the two groups of members, taking over their framework assessed the

the provisions only of those aspects, on the basis of review

the constitutionality of the legislative process, always. His review so include

the assessment of whether to preserve the constitutionally established legislative procedure

the process of participation of the individual in the meaning of the constitutional authorities and whether to

bills voted in each of the Chambers prescribed most members

or senators. It is a fact, which would be violations of the constitutionally

the rules without further led to the challenging of itself

the legitimacy of the law, and to them must be taken into account

every time, when it is assessed the compliance of legislation with the constitutional order.

For reasons of clarity will be summarized in the following section first

the latter fact in relation to each of the contested Law

separately, and then those that touch on their joint discussions in the

The Chamber of Deputies.



VI./a



Summary during the legislative process



179. From the observations of the parties and the Chamber of těsnopiseckých messages

the House and Senate, and other publicly available documents related

to the legislative process, the Constitutional Court found the following

the fact.



180. the draft law on the General inspection of the security forces and amending

related laws (print no. 410, unless stated otherwise,

This is the front of the prints in 6. the electoral period, running from 2010)

the Government has submitted to the Chamber of Deputies on 30. June 2011. Chamber

the Chamber of Deputies approved it in the third reading on 9. September 2011 on their 22.

meeting (resolution No. 684) voted for him when 79 of 139

Members, 30 of them were against and 30 abstentions. The Senate

discuss the Bill (Senate printing no 189, unless stated otherwise,

This is the Senate's prints in 8. term 2010-2012) and returned it to the

with the comments of the day 6. October 2011 at their 12. meeting (resolution No. 325). From

68 senators present voted for its return 48, 1 against and 19

abstentions. Subsequently, the Chamber of Deputies remained on the design

the law, in the version in which it was referred to the Senate (resolution No. 824), when

for its approval of the July 6 vote. November 2011 at its 25.

meeting 108 of 180 MPs, 69 against and 3 voting

were delayed. The law was delivered to the President of the Republic of 9 September. November 2011.

Signed by him was 16. November 2011. To its publication in the collection of laws

There have been 24. November 2011 in the amount of 120 under no. 341/2011 Coll. Effectiveness

acquired on 1 May 2004. January 2012, with the exception of certain provisions, which are so

happened on the day of its publication.



181. A draft law amending certain laws in connection with the

in the scope of the austerity of the Ministry of labour and Social Affairs,

(print no. 315) has submitted to the Government, the Chamber of Deputies the day 8.

April 2011. The Chamber of Deputies approved it in the third reading on 2.

September 2011 on their 22. meeting (resolution No. 664), when it voted

101 of 171 members and 70 of them were against. Senate to discuss and

rejected the Bill (Senate printing No. 180) on 7 December. October 2011 at their 12.

meeting (resolution No. 338). Of the 59 senators voted for his

the rejection of 35, 20 against and 4 abstentions, vote. Subsequently,

The Chamber of Deputies remained on the originally approved the draft law

(resolution No. 825), when for his approval again voted the day 6.

November 2011 at its 25. meeting 108 of 178 MPs and 70

It was against. The law was delivered to the President of the Republic of 9 September. November

2011. Signed by 16. November 2011. To its publication in the

the laws occurred 6. December 2011 in the amount of 128 under no 364/2011 Sb.

the effectiveness of acquired on 1. January 2012.



182. The draft law, amending Act No. 262/2006 SB., labour code,

in the wording of later regulations, and other related laws (the House

print no. 411) has submitted to the Government, the Chamber of Deputies on 30. June 2011.

The Chamber of Deputies approved it in the third reading on 9. September 2011 on

its 22. meeting (resolution No. 683), when it voted 87 of the present

149 members and 62 of them were against. The Senate rejected a proposal to discuss and

Act (Senate printing No 188) on 7 December. October 2011 at their 12. the meeting of the

(resolution No. 339). Of the 56 senators voted for his

the rejection of 37, 18 against and 1 abstention. Subsequently,

The Chamber of Deputies remained on the originally approved the draft law

(resolution No. 833), when for his approval again voted the day 6.


November 2011 at its 25. meeting 109 of 180 MPs, 70

against and 1 abstention. The law was delivered to the President of the

the Republic of 9 September. November 2011. Signed by him was 16. November 2011. To

its publication in the collection of laws was 6. December 2011 in the amount of 128 under

No 365/2011 Coll. effectiveness took on 1. January 2012.



183. The draft law amending the Act No 111/2006 Coll. on assistance in the

material need, in wording of later regulations, and Act No. 108/2006 Coll., on

social services, as amended, Act No. 117/1995

Coll., on State social assistance, as amended, and other

related laws, (print no 372) has submitted to the Government of the

the House of 25 June. May 2011. The Chamber of Deputies approved it in

the third reading on 9. September 2011 on their 22. meeting (resolution No 688), when

voted 89 147 deputies present, 58 of them were against.

The Senate discussed and dismissed Bill (Senate printing No. 193) on 7 December.

October 2011 at their 12. meeting (resolution No 340). From the present 56

Senators voted for his rejection of 38, 17 against and 1 abstained

the vote. Subsequently, the Chamber of Deputies remained on the originally approved

the draft law (No. 826) when the approval for its

voted 6 February November 2011 at its 25. meeting 109 of 179

present members and 70 against. The law was delivered to the President of the

the Republic of 9 September. November 2011. Signed by 22. November 2011. To

its publication in the collection of laws was 6. December 2011 in the amount of 128 under

No 366/2011 Coll. Effectiveness took on 1. January 2012, with the exception of some

the provisions, which will happen on 1 May 2004. January 2014. This Act was

changed section 18a, paragraph. 1 of the law on assistance in material need, whose cancellation is

the plaintiffs seek.



184. A draft law amending the Act No 435/2004 Coll., on

employment, as amended, and other related

laws (print no. 373) submitted to the Chamber of Deputies, the Government of the day

May 25, 2011. The Chamber of Deputies approved it in the third reading on

September 9, 2011 on their 22. meeting (resolution No. 689), when it voted

84 of 143 deputies present, 58 of them were against and 1 vote

delayed. The Senate discussed and dismissed Bill (Senate printing No. 194) on the

October 13, 2011 at their 12. meeting (resolution No. 369). Of the 58

Senators voted for his rejection of the 35, 18 against and 5 abstentions

the vote. Subsequently, the Chamber of Deputies remained on the originally approved

the draft law (resolution No 827), when his approval for reinstatement

voted 6 February November 2011 at its 25. meeting 108 of 179

MPs, 69 against and two abstaining. The law was

delivered to the President of the Republic of 9 March. November 2011. Signed by him was

November 22, 2011. To its publication in the collection of laws was 6. December

2011 in the amount of 128 under no 367/2011 Coll. effectiveness took on 1. January

2012. As for the law, which was accompanied by the Employment Act

the contested provisions of § 30 paragraph. 2 (a). (d)).



185. The draft Act amending Act No. 48/1997 Coll., on public

health insurance and amending and supplementing certain related

laws, as amended, and some other laws (the House

print no. 409) has submitted to the Government, the Chamber of Deputies on 30. June 2011.

The Chamber of Deputies approved it in the third reading on 7. September 2011 on

its 22. meeting (resolution No. 682), when it voted 95 of the present

158 members, 61 of them were against and 2 abstentions, vote. The Senate

discussed and dismissed Bill (Senate printing No. 187) on 12 June 2006. October

2011 at their 12. meeting (resolution No. 345). Of the 65 Senators

voted for his rejection of the 40, 21 against and 4 abstentions

the vote. Subsequently, the Chamber of Deputies remained on the originally approved

the draft law (resolution No. 832), when his approval for reinstatement

voted 6 February November 2011 at its 25. meeting 108 of 178

present members and 70 against. The law was delivered to the President of the

the Republic of 9 September. November 2011. Signed by 22. November 2011. To

its publication in the collection of laws was 6. December 2011 in the amount below 129

No 369/2011 Coll. effectiveness took on 1. April 2012.



186. The draft Act amending Act No. 235/2004 Coll., on the taxation of

value added, in wording of later regulations, and other related

laws (print no. 377) submitted to the Chamber of Deputies, the Government of the day

May 25, 2011. The Chamber of Deputies approved it in the third reading on

September 2, 2011 on their 22. meeting (resolution No 665) when it voted

99 of the 167 members and 68 of them were against. Senate to discuss and

rejected the Bill (Senate printing No. 181) on 7 December. October 2011 at their 12.

meeting (resolution No. 337). Of the 61 senators present voted for his

the refusal 41 and 20 against. Subsequently, the Chamber of Deputies remained on

originally approved Bill (resolution No. 828), when for his

Re-approval vote of the day 6. November 2011 at its 25. the meeting of the

110 of the 180 MPs and 70 against. The law was delivered to the

the President of the Republic on 9. November 2011. Signed by 22.

November 2011. To its publication in the collection of laws was 6. December

2011 in the amount of 129 under no 370/2011 Coll. Effectiveness took on 1. April 2012

with the exception of some provisions that take effect up to 1. January

2013.



187. the draft law on health services and conditions of their

provision (law on health services) (print no. 405)

the Government has submitted to the Chamber of Deputies on 30. June 2011. Chamber

the Chamber of Deputies approved it in the third reading on 7. September 2011 on their 22.

meeting (resolution No. 678), when it voted 108 of 175

members and 67 of them were against. The Senate discussed and rejected the draft law

(Senate printing No. 183) on 6. October 2011 at their 12. meeting (resolution No.

332.) from the present 65 senators voted for his refusal was 44, 16

against and 10 abstentions. Subsequently, the Chamber of Deputies remained

the originally approved Bill (resolution No 829), when for his

Re-approval vote of the day 6. November 2011 at its 25. the meeting of the

110 of the 180 MPs and 70 against. The law was delivered to the

the President of the Republic on 9. November 2011. Signed by 22.

November 2011. To its publication in the collection of laws was 8. December

2011 in the amount 131 under no 372/2011 Coll. Effectiveness took on 1. April 2012

with the exception of some provisions that take effect up to 1. April

2013.



188. the draft law on the specific health services (print no.

407) has submitted to the Government, the Chamber of Deputies on 30. June 2011.

The Chamber of Deputies approved the Bill in a third reading on 7. September

2011 on their 22. meeting (resolution No. 680), when it voted 92 of

160 MPs present, 64 of them were against and four abstaining.

The Senate discussed and dismissed Bill (Senate printing No. 185) on 12 June 2006.

October 2011 at their 12. meeting (resolution No. 343). From the present 60

Senators voted for his rejection of 38, 16 against and 6

abstentions. Subsequently, the Chamber of Deputies remained on the original

the draft law (resolution No. 830) when the approval for its

voted 6 February November 2011 at its 25. meeting 107 of 178

present members and 70 against, 1 abstained from the vote. The law was

delivered to the President of the Republic of 9 March. November 2011. Signed by him was

November 22, 2011. To its publication in the collection of laws was 8. December

2011 in the amount 131 under no 373/2011 Coll. effectiveness took on 1. April

2012.



189. the draft law on the medical emergency service (print no.

406) has submitted to the Government, the Chamber of Deputies on 30. June 2011.

The Chamber of Deputies approved it in the third reading on 7. September 2011 on

its 22. meeting (resolution No. 679), when it voted to 93 of the present

157 members, 38 of them were against and 26 abstentions. The Senate

discuss the Bill (Senate printing No. 184) and returned it with the

comments by 12 June. October 2011 at their 12. meeting (resolution No. 342). From

69 senators present voted for the return of 52, none were against

and 17 abstained. Subsequently, the Chamber of Deputies remained on

the draft law, in the version in which it was referred to the Senate (resolution No.

823), when for his approval again voted the day 6. November 2011

at its 25. meeting 109 of 181 deputies present, 51 against and 21

abstentions. The law was delivered to the President of the Republic of 9 September.

November 2011. Signed by 22. November 2011. To its publication

in the collection of laws was 8. December 2011 in the amount 131 under no 374/2011

Coll. effectiveness took on 1. April 2012.



190. A draft law amending certain laws in connection with the

the adoption of the law on health services, the Act on specific

Health Services Act and the medical emergency service,

(print no 408) has submitted to the Government, the Chamber of Deputies on 30.

June 2011. The Chamber of Deputies approved it in the third reading on 7.

September 2011 on their 22. meeting (resolution No. 681) when it voted 92

from the present 158 members, 59 of them were against and 7 abstentions

the vote. The Senate discussed and dismissed Bill (Senate printing no 186)

on 12 June 2006. October 2011 at their 12. meeting (resolution No. 344). From the present 55

Senators voted for his rejection of 35, 16 against and 4

any abstention. Subsequently, the Chamber of Deputies remained on the originally

the approved Bill (resolution No. 831), when for his re

approval of the July 6 vote. November 2011 at its 25. meeting 109 of 179

present members and 70 against. The law was delivered to the President of the

the Republic of 9 September. November 2011. Signed by 22. November 2011. To

its publication in the collection of laws was 8. December 2011 in the amount 131 under the

No 375/2011 Coll. effectiveness took on 1. April 2012.



191. A draft law on pension savings (printing No. 412)

the Government has submitted to the Chamber of Deputies on 30. June 2011. In the introduction,

the first and the second reading was approved the proposal that the debate was merged

to this point, and to the outputs no 413 and 414 (see below), by which it was


followed. The Chamber of Deputies approved the Bill in a third reading

9 June. September 2011 on their 22. meeting (resolution No. 685), when for him

voted 86 of the 147 members and 61 of them were against. The Senate

discussed and dismissed Bill (Senate printing No. 190) on 12 June 2006. October

2011 at their 12. meeting (resolution No. 349). Of the 61 Senators

voted for his rejection of the 43 and 18 against. Subsequently, The Chamber

the House remained in the originally approved Bill (resolution No.

834), when for his approval again voted the day 6. November 2011

at its 25. meeting 109 of 179 MPs and 70 against.

The law was delivered to the President of the Republic of 9 September. November 2011, with

the time limit laid down in the article. paragraph 50. 1 of the Constitution or not signed, nor

not returned back. To its publication in the collection of laws was 28. December

2011 in the amount of 149 under no 426/2011 Coll. Effectiveness takes 1. January 2013

the exception of certain provisions which took effect 1. January 2012.



192. the draft Act on supplementary pension saving (print no 413)

the Government has submitted to the Chamber of Deputies on 30. June 2011. Chamber

the Chamber of Deputies approved it in the third reading on 9. September 2011 on their 22.

meeting (resolution No. 686), when it voted 86 from the present 149

Members, 61 of them were against and 2 abstentions, vote. The Senate

discussed and dismissed Bill (Senate printing No. 191) on 12 June 2006. October

2011 at their 12. meeting (resolution No. 350). Of the 58 Senators

voted for his rejection of the 36, 19 against and 3 voting

were delayed. Subsequently, the Chamber of Deputies remained on the originally approved

the draft law (resolution No. 835), when his approval for reinstatement

voted 6 February November 2011 at its 25. meeting 109 of 179

present members and 70 against. The law was delivered to the President of the

the Republic of 9 September. November 2011, taking it within the time limit laid down by article.

paragraph 50. 1 of the Constitution nor did not sign, nor did not return back. To its publication

in the collection of laws was 28. December 2011 in the amount of 149 under no 427/2011

Coll. Effectiveness takes 1. January 2013, with the exception of certain provisions, which

became effective on the date of its publication, or six months after the date of its

publication, or it will take 1 day. January 2014.



193. A draft law amending certain laws in connection with the

the adoption of the law on retirement savings and the Act on supplementary pension

savings (printing no 414) submitted to the Chamber of Deputies, the Government of the day

June 30, 2011. The Chamber of Deputies approved it in the third reading on

September 9, 2011 on their 22. meeting (resolution No 687), when it voted for him

87 of the 146 members, 57 of them were against and 2 vote

were delayed. The Senate discussed and dismissed Bill (Senate printing No. 192)

on 12 June 2006. October 2011 at their 12. meeting (resolution No. 351). From the present 54

Senators voted for his rejection of the 35, 8 against and 11

abstentions. Subsequently, the Chamber of Deputies remained on the originally

the approved Bill (resolution No. 836), when for his re

approval of the July 6 vote. November 2011 at its 25. meeting 107 of 177

present members and 70 against. The law was delivered to the President of the

the Republic of 9 September. November 2011, taking it within the time limit laid down by article.

paragraph 50. 1 of the Constitution nor did not sign, nor did not return back. To its publication

in the collection of laws was 28. December 2011 in the amount of 149 under no 428/2011

Coll. Effectiveness takes 1. January 2013, with the exception of certain provisions, which

became effective on the date of its publication or on 1 May 2004. January 2012.



194. Furthermore, it should be noted that the Council prints no 405, 406, 407, 408,

409, 410, 412, 413 and 414 was under section 91, paragraph. 2 of the rules of procedure

shortened the deadline for consideration of the Bill in Committee for 40 days, in

the case of the Council prints No. 377 and 411 for 30 days. With the exception of the Council

prints no 372 and 373 was the conclusion of the second reading approved draft on every time

the shortening of the time limits for the initiation of the third reading on 48 hours within the meaning of § 95

paragraph. 1 of the rules of procedure. In the case of Deputies print no. 315 occurred

on the proposal of the Deputy Jan Vidíma, who was the complainant the law.



195. From the data above, it is evident that in the case of any infected

the Senate decided on their laws 12. the meeting held on 6. up to 13. October

2011 for their rejection or return with comments. Chamber

the House of they subsequently dealt with on their 25. the meeting, taking them to the

voted 6. November 2011. Draft agenda of this meeting, which approved the

the Organising Committee of the Chamber of deputies at its 37. the meeting of 13 July 2005. October

2011 (resolution No. 177), any discussion of the laws of the

The Senate, if they met the statutory period "in the days of 1. and 2. November

2011. It, what laws will apply to this hearing, was not in the

the invitation to the meeting. Introduction the October 25. October 2011, and

even before the approval of the agenda, said the chairwoman of the

the House of Deputies, in the middle of the 19th century. the Senate returned 15 October 2011

Bills, according to the Chamber of deputies to complete

the legislative process. In addition to the above fourteen proposals were

even on a draft law amending the Act No 96/1993 Coll., on building

savings and construction savings State support and supplement of the law of the Czech

the National Council No. 586/1992 Coll., on income taxes, as amended by the law of the Czech

the National Council No. 35/1993 Coll., as amended, and Act No.

586/1992 Coll., on income taxes, as amended (House

print no. 378, Senate printing No. 182). This proposal was discussed by the Senate

on 12 June 2006. October 2011 on its 12. the meeting and returned to the Chamber of Deputies with the

amendments. To approve the agenda of the 25. the meeting of the

the Chamber of Deputies took place, as regards the classification of the Senate rejected or returned

Bills, in the form proposed by the Organising Committee.



196. After the start of negotiations, the Chamber of Deputies on 1 May 2004. November 2011,

Therefore, the next of her June 25. the meeting, informed the President of the

The Chamber of deputies members that its introduction will be dealt with under the laws of the

rejected or returned by the Senate. After opposition mp Jerome Tejc

has submitted a number of proposals to amend the agenda of the meetings of the latter as well

of the points, the Chairman of the parliamentary Club of the TOP 09 and the

The mayors proposal to Mannheim Chamber of Deputies acted in this

day and meritorně and procedurally voted on all the proposals, even after 19:00 and

After 21:00, or even the next day after midnight. The proposal was accepted, when

for him from 185 MPs voted 104, 62 were against. Further

in the debate, the Chairman of the parliamentary group enrolled Civil

the Democratic Party with the design, Stanjura Bassa to the House

the Chamber of Deputies agreed to limit speaking time to 10 minutes on each

a member can withdraw up to the same thing twice, and finally to

the rules on the day of this meeting were also Saturday 5. November, Sunday 6.

Monday, November 7. November. On each of the proposals was

separately, and all votes have been received (to the first two

CF.. resolution No. 813). Out of the 185 present deputies voted for the first

design 102, against 80 for the second proposal, 103 against was 78 and for the

the third proposal was 105, against 78 members.



197. Adopted a resolution called the Chairman of the parliamentary Club of the Czech party

the social democratic Bohuslav Sobotka confusing as according to § 59

paragraph. 1 rules of procedure can be such a limitation of speaking time to accept only

in relation to the specific point of the present. In this context, the

voiced disagreement with the statement by the President of the Chamber of Deputies,

which this restriction has been adopted in relation to all the points mentioned, i.e., it

The Senate returned or refused bills. Such interpretation

Indeed, not only preventing the omission of these points in the adopted resolution, but also

the fact that these points have not yet been included in any resolution of the

the approved agenda. The President of the parliamentary group of the Communist Party

Bohemia and Moravia Pavel Kovacik questioned its interpretation and, for that reason, that

the question of the draft held a vote before it was voted on

submitted proposals for the amendment of the classification of individual points. In a given

the moment could not have been so clear when and what items will be

discuss. To the objections joined Rep. Vojtěch Filip from the same

the Club, which pointed out that the addition of agenda for the return or

rejected laws is only possible on the proposal, which must be voted on and

against which an objection may apply two of the clubs or at least 20

members. In the same way eventually moved the Chair of the

the Chamber of Deputies already on 13. the meeting of 1 June 2006. February 2011, when the classification Appeal

returned or rejected bills voted. Subsequently, 22

members of the Club of the Communist Party of Bohemia and Moravia applied objection

against the inclusion of these points under section 54, paragraph. 6 of the rules of procedure. To the same

the argument and the opposition through its President joined and

Group of the Czech Social Democratic Party.



198. The Chairperson referred to the Chamber of Deputies has responded with arguments

pointing to another precedent from the year 2005, when the then Chairman Lubomir

He did not recognize the objection against the inclusion of such bills to

the agenda of the meeting. By law, he arose the obligation to include on the

the next meeting of the laws that the Senate back, taking the law at all

does not count with the possibility that their inclusion was voted on. On the basis of the

This argument, as Vice-President of the Chamber of Deputies, Kateřina

Klasnová, who at the time chaired the meeting, did not acknowledge the validity of the

the opposition group members against the approved agenda of the meeting of the Tween.

Objection to the procedure of President was rejected, when for her

compliance with voted only 75 of 181 MPs, 106 were against.



199. The Chamber of Deputies approved the day 2. November 2011 draft members

Of Stanjury, even in this day and meritorně and procedurally

vote on all proposals after 19:00, 21:00 hrs., as well as

the next day, after midnight. It is to be noted that in the days of 1. and

November 2, 2011 until the morning hours of debate on the proposal

the law amending the law on building savings (see above point 195


This award), and whether it will be adopted, once again voted

The Chamber of deputies to 3. November 2011 in the evening. Before the end of

the night of the negotiations suggested member of Mannheim, to 3. November 2011

It was without a time limit. Then, when that same evening, MEPs

the latter again approved the draft law, which was returned

By the Senate with amendments, tabled by parliamentarian Zbyněk Stanjura

the proposal that was under section 54, paragraph. 8 of the rules of procedure, the debate on the consolidated

the remaining fourteen draft laws. His proposal was motivated by the fact that the first

of the Senate returned laws lasted several tens of hours of debate, which

included 110 speeches of opposition members. They also emphasized

the constant submission of various "senseless" amendments. For

the draft voted 104 of 181 MPs, against was 37. Member of the

Pavel Kovacik argued that the debate should not be merged, as the

the present points along factually unrelated. The only link here

the fact that this is about the components. the reform. Vice-president Of The Chamber Of Deputies

House of Vlasta Parkanová as President, however, has opened a "first point

from this block ", and was followed by the introduction of individual bills

the appellant's performance as representatives of the Government and of the rapporteurs. Then she was

Open the combined debate on these points.



200. In the introduction, the merged debate suggested Deputy Marek Benda, on behalf of

the Coalition presented the Civic Democratic Party, TOP 09, and

Mayors and public affairs speaking time limit for discussion 14

points on 10 minutes for members and limit their options to get off to a

These points not more than twice. Justify its proposals of the obstruction

the opposition, refusal to be to terrorize the abuse of the rules of procedure:

"Simply is the right of the opposition to talk, talk, argue, is not the right

the opposition to delay indefinitely and bother. " (report from těsnopisecká

the hearing of the House of 3 December 2004. November 2011, 25. the meeting,

URwww.psp.cz). Both proposals were adopted, when the first of them voted

100 of the 147 MPs, against 42, and has been for the other 97 of 146

MPs were also against 42 (resolution No. 820). This

the procedure was subsequently challenged in the performances of Deputies Bohuslav

Sobotka and Vice-Chairman of the Chamber of Deputies Lubomir Zaorálka, whose

the objections are partly congruent with the argument of the petitioners in this

the proceedings. The result of the approved design was how, when President

the meeting admitted to each of the members of the third or more appearances in

the debate.



201. The combined debate continued in the days of 4., 5. and 6. November 2011.

In all cases, there was a proposal from one of the Chairmen of the Coalition

presented for approval to the resolution, to the Chamber of Deputies

acted meritorně and procedurally on all the proposals after 19:00 and after 21:00

hours, or even on the second day after midnight. For the design in relation to the conduct of

4 March. November 2011 of 149 MPs voted 97, against

It was 49. For the design in relation to the hearing on 5 December. November 2011 votes

of the 113 members of Parliament present 71 against was 39. For the design in relation to the

October 6. November 2011 vote of 62 deputies present, 101

27 against. Merged debate was closed the same day before 22:00

PM. After 23:00. It was voted on each of the fourteen proposals

laws. Throughout the course of the proceedings of the meeting alternated Chair

The Chamber of Deputies and Vice-President of Miroslava Němcová Vlasta

Parkanová and Catherine Klasnová. Lubomír Zaorálek, Vice-Chairman

as the only member of the leadership of the Chamber of Deputies was a member of the opposition

parliamentary group, namely the Czech Social Democratic Party,

the meeting in the course of this debate.



VI./b



The definition of the subject of the constitutional review and its General starting points



202. on the basis of the established facts, the Constitutional Court does not have any

doubt, that in the case of all fourteen of the contested Law was

adhered to the Constitution established by the decision-making process of the individual Chambers and

the President of the Republic in the framework of the procedures for their adoption, and that their

the approval occurred every time the prescribed majority of members or senators.

These facts are not nerozporují or the plaintiffs. The Constitutional Court therefore

He went to each of the objections that in relation to the method of adoption

the contested law to apply both a group of MPs.



203. According to the claimants was a merge debate on the proposals of all

the contested acts in violation of section 54, paragraph. 8 of the rules of procedure, because these

proposals with each other factually unrelated. At the same time should be

violation of section 59 paragraph. 1 and 2 of the rules of procedure. Limitation of speaking time and the number of

speeches of individual members, it was possible to push through just to

the individual points of the agenda of the meeting, but not all of which was

guided by the merge debate. In disregard of these rules see

proponents of the elements leading to the arbitrariness in challenging the legitimacy and

the legality of the adopted laws, violation of some rights opposition

was limited in their content, substantive criticism and debasement

the role of the Senate in the legislative process, when the reasons for which the returned

or rejected the Bills, could not be adequately addressed in the debate.

These negative consequences should be amplified by the inclusion of the bills without

the vote on the ongoing meeting of the Chamber of Deputies, which according to the

plaintiffs there contrary to § 54 paragraph. 6 and § 97 paragraph. 3 and 4

the rules of procedure. The reason for the annulment of the contested acts find

the plaintiffs in those pochybeních cumulatively, even with regard to the

that, in the case of most of them was already in the original

the hearing in the House of Commons to reduce the time limits for consideration of the proposal

the Bill in the Committee under section 91, paragraph. 1 and 2 of the rules of procedure of 60 to 40, or

30 days and to shorten the time limits for the initiation of the third reading pursuant to § 95 paragraph.

1 of the rules of procedure of the 72 on 48 hours. As the last argument in support

this context indicate that during the negotiations in the days 3. up to 6. November

2011 has not been allowed to control a meeting only of the Vice-President

the Chamber of Deputies, which represents the parliamentary opposition.



204. Objections to the course of the legislative procedure, albeit this time in

relation to the adoption of the law on health services, formulated and group

members of Parliament, which has the status of the intervention. The way

consideration of the Act is mainly criticized for lack of proper

the time frame, that, having regard to the nature of the "code of conduct" enabled

achieve broader consensus on its contents. The draft law was

presented at the beginning of the summer of 2011, in the holiday period, without

MEPs already available and the related draft amendment to the law on

public health insurance, which was given to the question to

in October of this year. In conflict with the constitutional order has to be the fact,

When discussing the draft law approved by the so-called. poor.



205. The Constitution defines the basic structure of the legislative process, provides

that constitutional authorities participate, on him and prescribed by the majority

for the adoption of laws. Of a substantial part of the rules, which are

certain enough that it can be applied directly. Their contents

However, it cannot be seen in isolation from the much more general constitutional

the principles, which are in a democratic legal State for adoption

the political decision. Among them can be classified mainly democratic

the principle and with the associated principle of majority decision-making, resulting from the

article. 1 (1). 1 and article. 5 of the Constitution, the prohibition of arbitrariness, principle of protection

minorities in taking political decisions, a requirement of the Democratic

control, both by the members of Parliament and senators, as well as by the

to the public, and finally, but not in the last place, the principle of free

competition of political parties [closer to their content of CF. find SP. zn.

PL. ÚS 55/10, section V.A and B, and the finding of 19 December. April 2011 SP. zn.

PL. ÚS 53/10 (N 75/61 SbNU 137; 119/2011 Coll.), part IV.]. These

the constitutional principles must be reflected in the interpretation of individual articles

The Constitution governing the course of the legislative process, and therefore must

project and the detailed arrangements on the level of the meeting schedules, and be so

specifying for the interpretation and application of their provisions (cf. find SP. zn.

PL. ÚS 77/06, paragraph 38). It's just the rules of procedure, which

through these principles are effectively guaranteed and screened to the

the daily parliamentary practice.



206. it is clear from the arguments of the plaintiffs in the case of the contested

laws should be undue interference in the principles governing the

is provided by the protection of the rights of the parliamentary opposition in legislature

process, and specifically the right to comment on the submitted proposals.

The Constitutional Court has in the past stressed that the legislative procedure must

to allow interested persons on her "real assessment and consultation

the draft Parliament "(find SP. zn. PL. ÚS 24/07). It is clear that

individual members of Parliament or Senators must have a real opportunity to meet

with the content of the submitted draft of the Act, assess and take him to him

opinion in the context of its consideration in the competent Chamber of the Parliament, or

in its institutions, to which they must be created with sufficient time

space (cf. find SP. zn. PL. ÚS 53/10, paragraph 108). The above

the requirement of the "real assessment" but not only on the members of the

parliamentary chambers, but applies to the broader public, whose control and

critical assessment must be the legislative process in a democratic State

always open. Finally, neither the parliamentary debate itself does not point only

inside the legislature. The elected representatives of the citizens are in direct

confrontation with the views of their opponents forced to publicly state the reasons and

defending his proposals to allow the public to determine whether and to what

the reasons for the proposal or not. The mutual confrontation, so

not limited only to the exchange of arguments between the MEPs and

the senators, but it is necessary to deal with it in a broader sense, and it's in the

connection with the ongoing public discussions at the same time, which can have you

all sorts of imaginable form. That applies in the same way,

how the elected representatives acts on the formation of the views of the public to


individual issues of public interest, affects public opinion

formation of attitudes and decisions of individual MPs and senators (cf.

find SP. zn. PL. ÚS 53/10, paragraph 106, find SP. zn. PL. ÚS 77/06, points

55 and 56). It is finally realized by legitimizing the legislative function

process.



207. the right (not only the opposition) MPs or senators present their

opinion on the parliamentary ground, and that's even before the design

law vote decides it is necessary to consider in relation to

the above legitimizing function, as well as the constitutional principles of free

competition of political forces within the meaning of article. 5 of the Constitution and article. 22 of the Charter and

protection within the meaning of article 4(1) of the parliamentary opposition. 6 of the Constitution. It cannot be

interpreted only as their subjective law, whose purpose is given by

itself. The importance of parliamentary discussion is in allowing the

the confrontation of opinions across the political spectrum, whether it is a conflict of

a parliamentary majority with the opposition or individual factions or, where appropriate,

only the opinions (cf. find SP. zn. PL. ÚS 77/06, paragraph 38), and

not in the unlimited rights realization of each individual Member, or

the Senator's comment in it. This right can reasonable rules of procedure

way to limit in order to rationalise during parliamentary debate,

that will allow consideration of a Bill (or other item) in a reasonable

time frame for leaving space for the expression of all the participants in the

the above sense. This of course is not to say that the rules of procedure may, in

the case of the individual members of Parliament or senators to completely exclude the possibility of their

to participate in the debate. May lay down rules to prevent

the parliamentary debate of its progress has become a place of evidence resource

a particular obstacle to its acceptance of the decision. In this sense, it is necessary to

Search and assess the balance between the legitimate interests of the ruling majority, and

the parliamentary opposition or minorities (cf. find SP. zn. PL. ÚS 55/10, paragraph

76).



208. The Constitutional Court, the petitioners that shares a preview to the violation of the constitutional

the principles relating to the legislative process, which was based

the reason for the withdrawal of bills may also occur as a result of

the cumulative effect of a series of incremental measures, even if each of them alone

such a conclusion about himself neodůvodňovalo. While these measures may not have

always the character of the breach of the law. Applies particularly in the case of, if

the subject of his assessment of the alleged illegal restriction of the rights of the parliamentary

the opposition. Protection of her status in the legislative process, namely the

It is not concentrated only in certain stages, but it is a General

the principle relating to the whole of its course. The intensity of

unfolding admissability limitations but it depends from more of the facts. Mismatch

the contested law with the constitutional order, in particular, may establish such

limitation of the rights of the parliamentary opposition, which affects the options

to participate in the legislative procedure as a full participant, i.e.

It deprives the real options to meet with Bill and comment to

him its opinion, and that it prevents or substantially

makes it difficult to control in relation to the Government or parliamentary majority.

The same consequence depending on the intensity of such a restriction was

i can admit arbitrary procedure for the consideration of these proposals.

Remaining to be delivered, in addition to the findings that there has been such a restriction, the

should always examine its significance as regards the participation of the opposition in the

the legislative process. It will also be essential, at what stage of the legislative

the process of this restriction, and whether its possible negative consequences

have not relaxed in his previous or subsequent stages.



VI./c



Own assessment of the constitutionality of the method of consideration of bills

The Chamber of deputies after their refusal or return of the Senate



209. With the exception of some of the objections raised by a group of MPs, which has

in this case the position of the intervention, the appellants seek

annulment of the contested laws on the grounds that they were as leaders

the parliamentary opposition in the legislative process the change on their

constitutionally guaranteed rights. The Constitutional Court has acknowledged in the past that such a

the intervention is liable reason for repeal of the law on the control on the control

the standards, comply with the corresponding proposal, however, subject to the submission of

without undue delay after its adoption, or after its publication in the

The collection of laws. This time range defined negatively, in the sense that

must not be a longer time gap, i.e., the distance of a few months, or

years [cf. find SP. zn. PL. ÚS 55/10, paragraphs 103 to 105; find SP. zn.

PL. ÚS 53/10, paragraphs 127 and 128; find of the day 15. may 2012 SP. zn. PL.

TC 17/11 (220/2012 Coll.), item 36]. The material is in the

essentially by projecting the principles of legitimate citizens ' confidence in the law,

legal certainty and the protection of the acquired rights to the decisions of the Constitutional Court in the

the procedure for the abolition of laws and other legislation, as a consequence of the

future derogations otherwise (the content) constitutionally consistent law could

be inappropriately exposed to its addressees. At the same time

through it, take into account the fact that, in the present case, the

the rights of the parliamentary opposition, whose protection is concerned, MEPs may

not only actively pursue, but also voluntarily forego. Not yet

to accept this claim remains available indefinitely into the future,

When will be its application by the concerned members evaluated as

expedient. Submission of the proposal in the above time period should therefore be

interpreted as consent for that restriction, the result of which

will later be considered a reasonable objection.



210. Because the plaintiffs in the case fight over the repeal of the laws

proclaimed in the collection of laws during the month of December 2011 (respectively.

in one case, at the end of November 2011), to their proposal, which was

The Constitutional Court delivered 6. January 2012, evaluate as brought on

immediately after their publication. Were therefore fulfilled the conditions for

to the Constitutional Court assessed the constitutional konformitu of the legislative procedures of the

the point of view of all the complainants raised objections.



211. The Constitutional Court shall in the first instance dealt with the way in which the Senate

rejected or returned by the bills included on the agenda when

25. in progress the meetings of the Chamber of Deputies. According to § 97 paragraph. 3 and 4

the rules of procedure "shall submit" the President of the Chamber of Deputies rejected or

Bill returned after the expiry of at least 10 days "to the nearest

the meeting "for the Chamber of Deputies voted again. It is obvious that from the

the aforementioned provisions implies the obligation to initiate its Chairperson

discussion of these proposals at the next meeting, to be

as soon as you decide. This particular way of initiation, while the law

does not provide, but you can assume that its form will match the

the rules of procedure laid down by resources, which allow classification of certain

point to the agenda of the meeting. By default, so will be the draft agenda

the meeting pursuant to § 54 paragraph. 4 of the rules of procedure, or may even go on the proposal

to complement the approved agenda pursuant to § 54 paragraph. 6 of the rules of

the order, against which an objection may, however, apply the two of

clubs or 20 members. In contrast, such a resource could not be marked

Tween agenda by decision of the President of the Chamber of Deputies, and that of the

the following reasons.



212. Of the total concept of the rules of procedure, it follows that the approval of the agenda

the meeting is in the scope of the Chamber of Deputies, while its extension without

her consent law only exceptionally. It's basically about

in emergency situations, which include for example. announcement of the State of war

or a State of emergency. In these cases, the rules of procedure explicitly

provides that, if a meeting takes place, the discussion of a particular item on the

her show (§ 100a paragraph 3, section 109 m² (2) of the rules of procedure). From this

the diction is to be distinguished, those which enjoin only

the inclusion of the item on the agenda of the next meeting (eg. section 82 (1), § 109j

paragraph. 6 of the rules of procedure), which is a similar wording as in § 97 paragraph. 3 and

4 of the rules of procedure. Their purpose is to ensure that the points

discussed at the earliest opportunity. This provision, however,

do not allow their inclusion in the agenda has been approved

ongoing meetings other than pursuant to § 54 paragraph. 6 of the rules of

of the order. With the addition of the agenda of the meeting is to always carry the risk of

most surprising inclusion of a parliamentary point denies

individual members the opportunity to prepare for the hearing, or

This discussion ever attend (cf. find SP. zn. Pl. ÚS

53/10, paragraph 126), which are the reasons, why can the parliamentary

minority objection to such a proposal. Referred to would

applied also in case of eventual inclusion of a proposal to

an immediate discussion on the meeting, which would have been by decision of the

President of the Chamber of Deputies which depend only on the basis of its own

discretion, to such interpretation of its powers to choose sides.



213. In spite of these findings, the Constitutional Court did not find unacceptable restrictions

the rights of the parliamentary opposition in the namítaném procedure, the Chair of the

the Chamber of Deputies. The approved agenda of the meeting had counted with discussion by the Senate

refused or returned to the Bills. Although these proposals directly

did his approval but occurred at a time when it has already been

The Chamber of Deputies delivered a resolution on refusal or return of designs

the contested laws. It was therefore possible to assume, that the addition of the agenda,

will cover them. The term of their hearing was set

so that was in collision with a 10-day period pursuant to § 97 paragraph. 3 and 4

the rules of procedure, the purpose of which is to create an adequate time

the space for getting familiar with the opinion that a draft law has delivered

The Senate. You can therefore conclude that, even if the additional expanded 25.

the meetings of the Chamber of deputies of the Senate returned or rejected proposals

the laws require the procedure provided for in § 54 paragraph. 6 of the rules of procedure, in the case of

the contested law allowed their discussion already approved show

the meeting. The case therefore was not room for the application of the objection


supplement the agenda of the opposition MPs.



214. As regards the alleged merging of debate under the current restrictions

speaking time for members and the number of their speeches, Constitutional Court

notes that the legislature is in creating the structure of the legal order of the

the formal division into laws of bound legal attributes

the State, which include the principles of predictability in the law, its

clarity and internal bezrozpornosti [cf. find of 12 February

2002, SP. zn. PL. TC 21/01 (N 14/25 SbNU 97; 95/2002 Coll.) also find sp.

Zn. PL. ÚS 24/07]. Just one of them can be inferred the requirement to act in

the formal sense at the same time more matter that modified my are not mutually

materially and systematically linked. This requirement may be granted

justification even in relation to the way in which the proposals are discussed

laws. He has the legislative procedure to open and

a critical evaluation, it is desirable that its subject was defined with

regard to the above mentioned content of the link, and its consideration

so there is a clear and comprehensible manner. For these reasons, shares

The Constitutional Court's opinion to the plaintiffs, according to which it should be section 54 paragraph. 8

the rules of procedure may be interpreted in the sense that the merge discussion to two

or more points the show assumes their factual connection.

Its merge to more mutually unrelated points, led to the

the absurd result of "all-encompassing" debate, that would be just for a range of

his subject matter lacked any reasonable sense.



215. that interpretation is of significance for the possible application of section, paragraph 59. 1 and 2

the rules of procedure, according to which the Chamber of Deputies "to

the present point shall act on the limit "of speaking time, which shall not be

less than ten minutes, as well as on the fact that "the same matter", a member may

get out no more than twice. The Constitutional Court does not find it an extreme interpretation,

According to which the concepts can be applied to the subject of the debate,

which in the case of merged all of the debate within the

Pending points. The reason for this is the requirement of a factual context,

from the point of view that it is essential that the subject of the debate is a

comprehensive Materia, not whether it is formally divided between the more proposals

laws, and are, therefore, in the context of the agenda of the meeting more points. A different interpretation would

eventually led to the artificial attempt to adopt a particular material in a single

the law, though for practical or other reasons could be more

more efficient to leave it formally in a large number of laws.



216. The Constitutional Court is of course aware that the purpose of those

the funds, which can be leveraged by the parliamentary majority, is

just shorten the overall duration of the debate, which is always linked

restriction options (not only) of the opposition members to get out in it. It does not mean

it, however, that no further funds were illegitimate or

with regard to the rights of the opposition, disproportionate manner. The rules of procedure may

the parliamentary majority to allow the adoption of such measures, designed to

is to respond to the situation, when the opposition by all

legal means to try to delay the adoption of the present decision.

Limitation of speaking time or the number of performances in accordance with section 59 paragraph. 1 and 2

the rules of procedure do not exclude the rights of individual members

to participate in the debate, but only to his time constraints. How it was

indicated above, it is about finding a balance between the interests of the Government of the majority of the

the adoption of a decision and the right of the opposition to seek acceptable

the means of achieving the opposite result.



217. for the assessment of all these restrictions in terms of the rights of the parliamentary

the opposition remains a key question, whether the condition has been met in kind

context, which would justify a merge debate within the meaning of § 54 paragraph.

8 of the rules of procedure, and, if so, whether the non-compliance is

eligible to establish in relation to contested laws derogation reason. Can be

briefly summarized, that the debate is after factual page concerned

laws containing significant (or even major) changes in

the provision of health care, the pension system, social system and

labour-law relations. This link between some of the laws

undoubtedly, existed, which is evident on the laws of the area

health care or retirement security. Inferred in relation to

all of them, however, can only be in a very abstract and from custom content

Remote form, which clearly does not correspond to the meaning of the merger. Unlike in the

the past period of the Act on the stabilization of public budgets (find

SP. zn. PL. ÚS 24/07) is not possible in this case in a meaningful way

key or the common purpose of these laws. In the case of Act No.

341/2011 Coll. on general inspection and security forces of change

related laws, is not even given the content of the context of any

of the other contested laws. The Constitutional Court therefore or in zdrženlivém

the evaluation did not find that, in the case of the proposals of the contested acts have been made

the legal assumptions for a merge debate. However, he came to the conclusion that in the

this case is not about the misconduct of such intensity, that with regard to the

the overall assessment of the way in the adoption of the contested Law was to establish a

their non-compliance with the constitutional order.



218. The Constitutional Court stresses in this context that, on the

the restriction has been in the final stage of the legislative procedure, which already exists in the

The Chamber of Deputies was read to all three of these proposals, and in the

the normal time span. As well as to their proper

consideration by the Senate. The Chamber of Deputies stood there only before

the decision whether to remain on the already approved draft laws, or

whether it be rejected, or, as regards the two returned by the Bills, whether it is

approve in the Senate, as amended. These facts are an essential

in the manner reflected in the guest during the legislative procedures of the

the perspective of the fulfillment of its legitimizing function. The restrictions mean his

the content in any way do not challenge the conclusion that the result of this procedure as

the whole are the laws, for which all persons participating on her ability to

to get acquainted with their content, to attract them to your opinion, and in the course of the

their consideration this opinion publicly (not only) on the parliamentary ground

to communicate, where appropriate, propose amendments thereto. You cannot reproach them nor

any unpredictability or překvapivost in relation to their

the addressees, respectively. in relation to the wider public.



219. In contrast to the plaintiffs, the Constitutional Court does not consider that the

for the assessment of compliance with the fundamental constitutional principles applicable

to the legislative process, it was possible to compare the way adoption

the contested law case discussion and the adoption of several laws in the

summary proceedings in the State of legislative emergency in November 2010, which were

the subject of his guest in the findings, sp.. PL. ÚS 55/10 and SP. zn. PL.

TC 53/10 (or also in finding SP. zn. PL. ÚS 17/11). While in the former

the event has been shortened the whole legislative procedure just for a few

days without a hit for so extreme in its course against the will of the

the parliamentary opposition were given exceptional and compelling reasons, the contested

laws have been, albeit with the exception of the opposing merged discussion

discussed in a standard way and in a sufficient time frame. In a given

things so this is not a case where they had to MEPs to amend the draft

final opinion of the law immediately after its filing. Chamber

on the contrary, the Chamber of Deputies on the draft laws have already expressed, with

the purpose of the debate again to them was to enable members to respond in

following the course of the legislative procedure on the Senate

zazněvší the reasons for these proposals which were rejected or returned with

the comments. It should be noted that the Chamber of Deputies went up to

vote again until after the expiry of the period of ten days, within the meaning of § 97

paragraph. 3 and 4 of the rules of procedure, which was to allow all members meet

in advance with the opinion of the Senate. At the same time was the parliamentary opposition

as a whole the possibility to withdraw the draft law in the debate, and the

If you can acknowledge that in terms of individual members was significantly

way limited.



220. In that assessment does not change the fact that, in the case of most

the contested law there has been some reduction of the deadlines for the consideration of the draft

Act committees under section 91, paragraph. 1 and for the opening of the third reading

According to § 95 paragraph. 1 of the rules of procedure, even if the justification of these measures can be

have with regard to the material at hand, and its range of different opinions. It was not

However, such truncation, which could of the above positions, constitutionally

the relevant way to challenge the legislative procedure, and made

even their cumulative effect to the merger debate in her last

stage. As regards the objections nepřipuštění the Vice-President Of

the Chamber of Deputies for the meeting and the approval of the shortening of the time limits under section 95 paragraph. 1

the rules of procedure in contradiction with this provision, on the proposal of the Deputy, not the

the petitioner, not them in terms of the assessment of the compliance of the contested acts

with the constitutional order in the first case, and in the second case

sufficient relevance. The other thing of course is that the above procedure

When discussing cannot be evaluated critically in terms of political culture,

You should be also bound by the Chamber of Deputies. Clearly

unfounded objections are ultimately incidental participants, according to the

where was the law on the health services presented in the holiday period and

without the related draft amendment to the Act on public health insurance.



221. The draft ancillary participants it is necessary to add that it was

the Constitutional Court has repeatedly called a planning practice. přílepků

When discussing the draft law on health services. It was, however,

only the note, which was not implemented, as a result of closer

which the Constitutional Court on her.



222. The Constitutional Court finally notes that it is not for him any way

to assess whether, in the case of a particular law have been with regard to the

the subject of his edits more suited to his admission was the result of a wider

political consensus, or speculate that part of the law of

health services should be unspecified comments support


to the public. It is primarily about political issues in relation to the

ústavněprávnímu assessment procedures, the adoption of this law do not have

no overlap.



223. For all these reasons, the Constitutional Court came to the conclusion that the way

the adoption of the contested Law was in accordance with the article. 1 (1). 1, article. 5, 6 and 15

Of the Constitution and article. 4, article. 21. 1 and 4, and article. 22 of the Charter, or with other

their articles, which, in this context, the plaintiffs alleged, and the secondary

participants. The adoption and publication of the contested acts have occurred within the limits of the Constitution

established competence and constitutionally prescribed way. The Constitutional Court thus

He could proceed to a factual assessment of the contested provisions.



VII.



Assessment of the conformity of the provisions of the constitutional law, which for the reason of disposal

from the register of job applicants provides for the denial of the exercise of public

services



224. The first group of provisions whose factual review of the claimed

the plaintiffs, complements the Law Institute of the public service included

in the Act on assistance in material need. On the basis of the offer made by the County

Branch Office work is her performance of newly granted and registered candidates

job, who, however, her performance in principle cannot refuse as

otherwise, they would be shut out from the register. This fact is

the main reason for which the applicants seek the annulment of the concerned

the provisions. They consider that the contested provisions are contrary to the

the right to free choice of profession, according to the article. 26 paragraph. 1 of the Charter,

the prohibition of forced labour under article. 9 of the Charter and the right to adequate material

ensure in accordance with article. 26 paragraph. 3 of the Charter, or also with the relevant

the provisions of certain international treaties. Whereas, in

the performance of the public service do not belong to the reward, argue and conflict with the law on

fair compensation for the work referred to in article. 28 of the Charter.



VII./a



Diction and the context of the affected provisions



225. The contested provisions of § 30 paragraph. 2 (a). (d)) of the Act on employment,

in the wording of Act No 367/2011 Coll., as follows:



"section 30



Removal from the register of job seekers



...



(2) a job seeker the regional branch office, work from

applicants for the employment decision, if no serious reason



...



(d) refuses to perform the public offer) service in the range not exceeding 20 hours

a week in the case, that it is conducted in the registration of job seekers

continuously for more than 2 months ".



226. the provisions of § 18a, paragraph. 1 of the law on assistance in material need, as amended by

Law No. 366/2006 Coll., whose annulment the appellants seek in part

expressed in words ", and persons in the register of job applicants

job ^ 54) ":



"§ 18a



Public service



(1) a public service means assistance to municipalities or other entities

in particular in the areas of improving the environment, maintaining the purity of the

streets and other public areas, assistance in the area of cultural and

sport development and social welfare. The public service is carried out

persons in material need and persons in the register of job applicants

job ^ 54) on the basis of a written contract that contains the basic

information about these persons (name, where applicable, the name, surname, day, month, and

the year of birth and place of residence), the subject and the period of performance of the public

the service concluded with the regional branch of the Labor Office, in agreement with the municipality or

another body. For the performance of public services does not belong to the reward. "



227. it is clear from the contested provisions, although does not provide direct

the obligation of registered jobseekers to accept the offer to perform

the public service, with his decision to combine the result of that will be on

kept in the register, and that will continue to be able to apply from

This position of the resulting rights. This conditionality is the key for

constitutional law examination in the case. Its implementation, however, requires

to define in greater detail the relevant aspects of the legislation, which

The Constitutional Court took into account in its decision-making.



228. the Cited provisions of § 18a Act on assistance in material need be determined,

that public service shall be the assistance to municipalities or other entities in the

some further specified areas. This assistance can be defined

According to the individual characters laid down by law. These include that the public

the service is carried out personally, taking the place of the subject and its time,

performance are laid down in a written contract between the applicant and the regional

Branch Office work. This Treaty is the legal basis for the exercise of public

the service. The regional office is responsible for the existence of agreed conditions

for the performance of the public service and the award of specific tasks to the

executors (cf. § 61, paragraph 3, of the Act on assistance in material need),

Therefore it can be concluded that between the branch and the executor is

the relationship of parent and child relationships. All these elements can be evaluated as

the characters of dependent work (cf. § 2, paragraph 1, of Act No. 262/2006 Coll., code

work, as amended by Act No 365/2011 Sb.), even if carried out basic

employment relationship (section 3 of the labour code), the characteristics of the

You can only underline the fact that on some aspects of its performance, specifically

the scope of the working time, rest periods, the conditions for ensuring

safety and health at work, the law foresees a subsidiary

the use of labour legislation.



229. The regional branch office is not required to work, but the possibility of

to offer the performance of public services. The law does not provide for specific rules on

the basis will be wooed by the individual applicants with a

the offer, and, therefore, any of the applicants may be offered (or

nenabídnut) performance of any kind of public service, that is to

available. The method, based on which it will be decided about who and what

offer (can) get, however, can be modified by the appropriate internal

the directives. As for the menu, their number and the specific content of the

depends on the contracts concluded between the regional branch office, work and

individual municipalities, or other bodies (cf. section 61 (4)

Bill on assistance in material need), including those which have been established in accordance with

private law. Excluded, therefore, are not entrepreneurs. Custom content

activities that comes into consideration as a public service, the law does not define,

However, it must be a link between this activity and areas (or

more precisely, the purposes) laid down in § 18a, paragraph. 1 the first sentence of the law on

assistance in material need. The law specifically provides for improving

the environment, maintaining the cleanliness of streets and other public

areas, assistance in the area of cultural and sport development and

social care. It is a non-exhaustive list, and can thus be accepted

activities in other areas of public interest at the local level, which will be

comparable type.



230. Under section 18a of the Act on assistance in material need not belong to a performance

public service remuneration. Its consideration can be found only in that

the jobseeker will be further kept in the appropriate register and will have

with the associated rights. It is first and foremost about the law on mediation

suitable employment (section 20 of the law on employment) and the right to support in

unemployment benefits (section 39 of the law on employment), which is the contenders after the

compliance with the conditions laid down by law is provided after the support period, which

is depending on the applicant's age 5 to 11 months (cf. § 43 of the same

of the Act), and the right to support in retraining (section 40 of Act No. 435/2004

Coll., on employment, as amended by Act No. 73/2011 Sb.). Furthermore, it is for him

State all the time, which is kept in the records of applicants for

employment insurance payer health insurance [section 7

paragraph. 1 (a). (e)) of the Act on public health insurance]. The Tenderer shall

also participating in the pension insurance in respect of the replacement period of insurance

(section 12 of Act No 155/1995 Coll., on pension insurance, as amended by

amended), and for the time that he belongs in the support

unemployment benefits or aid in retraining and in the range of three years also

After the time that such aid does not belong to him, albeit in this case

the law provides for certain additional restrictions [section 5, paragraph 1 (b). n) on the same

the law]. Two of the three years, while the latter can be time

offset only if it occurred after the age of 55 years. Separately,

for persons over that age may be set-off the applicable time

relevant for the calculation of the amount of the pension, because it prevents the reduction.

Disposal of records loses jobseeker rights referred to above,

therefore i must consider this fact when deciding whether

accepts or rejects the offer of public services. According to § 30 paragraph. 4 (b). (b))

the Employment Act can then be in the registration of job seekers

again ranked on the basis of a new written request only after 6 months

from the date of removal from the register of job seekers.



231. In addition to these rights need to be further noted that the inclusion in the

the registration of job seekers are obligations that must

the candidate to perform next to the possible performance of the public service. It's all about

the obligation to provide the County Branch of the Labour Office needed synergies

When the mediation job, and follow the instructions of this branch (§ 19

paragraph. 2 of the law on employment). This may have a different intensity,

in particular, as regards the obligation to report on this branch or on the

its liaison work, which currently represent the workplace

the mail. Czech Point.



232. The contested provisions of § 30 paragraph. 2 (a). (d)) of the law on employment in

the principle assumes that the refusal of the offer of public services is the reason

removal from the register. This is provided that the tenderer was kept in it

For more than two months, without any distinction between the then by

whether it is short or long term unemployed. Otherwise, the disposal

does not occur only if for rejection of the public service are serious

the reasons why. The content of this concept is defined in section 5 (a). (c)) of the law on

employment, and it clearly defined in principle by enumerating the reasons

(eg. necessary personal care of a child under the age of 4 years or physical

a person who is under a special legal regulation, shall be deemed to

dependent on the help of another person in the stages II to IV). Even this provision

but it creates a space for administrative discretion, and more specifically, in its paragraph 7,

According to which the serious grounds encompass "other serious personal


reasons, such as ethical, moral or religious grounds, or

worthy of special attention. " As to whether the conditions are met for

removal from the register of job seekers, decides the appropriate regional

Branch Office work, while the candidates is guaranteed the opportunity

to claim the protection of their rights in the framework of the administrative judiciary. Remaining

add that the law specifically governs situations when the candidate declines to

the performance of public services, but violate the related obligations, respectively.

This service does not perform properly.



VII.



Generally to the right to free choice of profession, according to the article. 26 paragraph. 1 of the Charter

and the prohibition of forced labour under article. 9 of the Charter



233. The introduction of the contested provisions of the assessment of compliance with the law on

the free choice of profession, according to the article. 26 paragraph. 1 of the Charter, and the prohibition of

forced labour and services according to the article. 9 of the Charter of the Constitutional Court shall be considered as

need to emphasize the link between the content of these rights. The former

guarantees (equal) access to each profession and the associated

the possibility of his election. This right can be defined and negatively, and that in the

meaning, that no one shall be compelled to perform any occupation. In this

the meaning of him actually corresponds to the prohibition of forced labour.



234. It is obvious that in the assessment of the contested provisions cannot be

link to overlook and their compliance with the constitutionally guaranteed

rights should therefore be assessed as a whole. However, not

Systematics of the Charter is not a duplicate of the character of both its

the provisions, as well as their subject matter overlaps, each of them

defines other elements. The reasons for this Division are partially

historical. It is a reflection of the fact that each of these rights is performed in the

constitutional developments in European countries a different function. While recognition of the prohibition of

forced labour was preceded by the experience of slavery and other, even

the more moderate forms of forced labour, in particular historical

periods, the entrenchment of the right to free choice of profession, in human rights

instruments was a reaction to restrict access to certain

for a narrow group of people, whether defined origin or strict

cechovními rules (cf. in detail. Wagner, E.; Prince, V.;

Langášek, T.; Pacheco, i. and wheels. The Charter of fundamental rights and freedoms.

Comment. Prague: Wolters Kluwer ČR, a.s., 2012, with 260-262, 575-576).

Sense but this Division does not lose today. How was already

indicated, the right to free choice of profession, concerns the wider circle of

legal relations than the prohibition of forced labour, since it also includes questions

access to each profession and the manner of their performance. Ban

forced labour is again distinguished by that act in relation to a public authority

immediately on the basis of article. 9 of the Charter, and it does not limit

the resulting for the former right of the article. 41 of the Charter, according to which the

some of the rights guaranteed by the Charter can sue only within the limits of

implementing the laws.



235. The prohibition of forced labour is going to protect human freedom and

dignity, in their very essence. The ability of an individual

decide what kind of profession, employment or other activities dedicated to your

the time and effort, and above all, how to raise funds to

his livelihood, represents a guarantee of its free realm in the area,

that is of fundamental importance for the development of his personality, and in many ways

significantly affects all aspects of his life. As to the

the possibility of his own self-realization, the opportunity to consider what action it

will meet and what he can offer in this respect. Last but not least

but it is also about the ability of each in their own hands have their place in the

to the company and enjoy the respect of those who make up its wider or

the near surroundings. Of course, it would be illusory to believe that decisions about the

whether to perform a specific job or not, is free from other influences

and that free speech will in this direction cannot be for a specific person

"enforced" by the circumstances of the situation. The essence of this ban but is heading the other way.

It cannot be found in the guard individuals, to all the responsibilities of the

considering your needs and adapted them to their actions, for example. by

accepts the job, which would have otherwise had no interest in, but due to its

the current financial situation, it is considered that to accept it. It, to what

the prohibition is directed, is just exclude the possibility of making such a serious and

free decision. As mentioned above, the decision shall, for the performance of

certain working activities can have a major impact on the life of the individual,

with the same impact it is necessary to admit even state when this decision has already been

It is not in his possession, but he is ordered to, and enforced on it. In

Depending on the content of the obligation in question is the decision about

how and where to spend a significant portion of my time, what the profession is

will have to pay and what it gets a reward, which will have to be

also be established authoritatively. All of these facts are

or may be relevant to private and family life of the

an individual, for his standard of living, or even social prestige,

and last but not least for his own satisfaction. Such a State of

and any unequal status, which would be in relation to the non-specific

measures intact-a group of persons could arise in this context,

It can be seen as humiliating, and rightly so, to cause

the question of whether it is not affected by his human dignity.



236. The Constitutional Court coincides with the claimant, in that for the assessment,

whether the requirement of acceptance of the offer of public service within the meaning of the contested

the provisions of the forced labour or service is according to the article. 9 (2). 1

Of the Charter, or forced or compulsory work according to the article. 4 (4). 2, of the Convention,

You can get a definition of this concept, which is contained in the article. 2 (2). 1

Convention concerning forced or compulsory work (cf. also the similar findings in the judgment

in the case of Van der Mussele against Belgium, paragraph 32). "Forced or compulsory

' work ' means any work or as a service that any

any person enforced under threat of punishment and which the said person

offered on a voluntary basis. It can be noted that in the past, the Constitutional Court

He emphasized the relevance of this definition for the interpretation of the term "forced labour or

the service ". If, however, the term is defined in a restrictive manner, i.e., as

"as a rule, work and services which very significantly and restrictively

extend to personal rights and freedoms of the citizen and the forced performance

represents the coercion of an administrative nature "(find SP. zn. Pl. ÚS

37/93, cf. also find SP. zn. I-2/93), without the stress that with

regard to its purpose, which is to protect the freedom and the dignity of

the individual acts in question prohibition in relation to natural and legal

persons. The State of him shows a positive obligation to make the criminal

such acts, which would enforce any one of the activities defined

in the article. 9 of the Charter, or article. 4 of the Convention, and to effectively combat it (cf.

judgement in the case Siliadin against France, paragraph 89). Otherwise, the Constitutional Court

characters of forced labour has so far expressed only sporadically. In their

the findings, among other things, as a condition of forced labor or services (respectively.

that, in order to be considered for exemption from their ban) the absence of a

consent of their executor [cf. find dated 25 June 2002 sp.

Zn. PL. ÚS 36/01 (N 80/26 SbNU 317; 403/2002 Coll.), the discovery of 25 June.

October 2005, SP. zn. PL. ÚS 20/04 (N 203/39 SbNU 133; 195/2006 Sb.)].



VII./c



Assessment of compliance with the prohibition of forced labour



237. Based on these grounds, the Constitutional Court's put a few

issues, and in the following order. First of all examined whether the public

service in the case of persons registered in the register of job seekers is

the work or service within the meaning of the abovementioned provisions, whether

carried out voluntarily, or whether it is exercised as a result of coercion

or under the threat of sanctions, and in the end, it was impossible to positively

to answer both of these questions, whether this is not a case of forced labour or

the services covered by the exemption provided for in article. 9 (2). 2 of the Charter or

article. 4 (4). 3 of the Convention, and article. 2 (2). 2, of the Convention concerning forced or

compulsory work or article. 8 (2). 3 (b). (b)), and (c)) of the International Covenant on

Civil and political rights, declared under no. 120/1976 Coll.



238. The first question is to be answered in the affirmative. It was stated that the

the public service has the character of dependent work within the meaning of section 2 of the labour code,

Therefore, it can be outside of any doubt accommodated under a broader concept

"work or service" within the meaning of article. 9 (2). 1 of the Charter. The Constitutional Court therefore

He could proceed to the next highest issue, and whether the performance of the public

the services takes place on a voluntary basis, or as a result of coercion. In this case, the already

but the answer is not prima facie obvious, and requires a closer definition of the

of the criteria.



239. First, it is to be noted that the obligation, which could be

admit the nature of forced labour or services, may not be individuals

determined separately, but may be included in the rights and obligations

his resulting from the legal relationship to which it is party. For the assessment of whether the

agreement with its emergence, it is therefore necessary to consider whether it should

the possibility to influence the content of this legal relationship, on what the purpose of actually

followed by it, and whether the obligation is also used to

his achievement, whether the content is related to the subject of the legal relationship and whether the

in relation to him is not unduly burdensome.



240. the abstract reasoning, you can zoom in on some cases of

the case-law. The complainants referred to the judgment in case Van der Mussele

against Belgium, the European Court of human rights dealt with the question of whether the

forced or compulsory work in the meaning of article. 4 (4). 2, of the Convention

does not constitute an obligation to trainee lawyers provide the destitute

clients of legal aid to a certain extent, without is entitled to

remuneration and reimbursement of expenses. Although it did not find a violation of this article, in

its justification neabsolutizoval the importance of the fact that the complainant

decided to become a lawyer voluntarily, even though it is obvious that with this

the decision had to predict the advantages and disadvantages, which are with the choice

this profession. On the contrary, he pointed out on another aspect of this

decisions, and that if he wanted to be a trainee solicitor (the complainant and


then a lawyer), so had no other option than this obligation

to accept. The question of whether it is forced or compulsory work, in

essentially shifted in a plane that would be from the perspective of the right to free

the profession referred to in article. 26 paragraph. 1 of the Charter can be likened to

consideration of whether a certain obligation does not constitute a sufficiently intense restrictions

How to practise the profession, that from the perspective of the person who performs it,

his performance lacks reasonable sense (cf. Article 4, paragraph 4, of the Charter).

Specifically, he stated that a compulsory work could be considered as a service

whose execution is necessary to gain access to a particular profession,

If this service saves the burden, which is so excessive or

disproportionate to the advantages linked to the future performance of this

the profession, that it cannot be considered that the performance of such services was previously

voluntarily accepted (paragraph 37 of the judgment, cf. also Based, j., Mike K., d.,

Kratochvíl, j., m. Bobek, the European Convention on human rights. Comment.

1. Edition. Prague: c. h. Beck, 2012, with 454). However, the obligation in question

such was not the case, which briefly explained by

between it and the activities of the lawyer there was a link, the content of its

saving was offset by other benefits, was exercised in the public

the interest and the burden associated with the performance of the services was not unreasonable (paragraph 39

of the judgment).



241. A similar approach was transposed into other decision of the European

Court of human rights, in which it assessed the compliance of certain obligations

relating to the profession, or other activity, the prohibition of forced labour,

without automatically followed from the fact that the occupation or

the activity pursued by the complainant voluntarily (e.g. the decision of 14 May 2001.

September 2010 in the matter of the complaint against Germany Steindel No. 29878/07,

the decision of 28 April 2004. June 2011 in complaint against Bucha

Slovakia No. 43259/07, decision of 28 June 1999. June 2011 in case

complaints against Slovakia no Mihal 23360/08 and no 31303/08), and can be

found in the relevant case-law of the Constitutional Court [cf. the opinion of

the Assembly of 21 September 2005. in May 1996, SP. zn. PL. ÚS-Wed 1/96 (ST 1/9 SbNU

471)], that the General starting points can be applied to

cases other than those that have a link with the article. 26 paragraph. 1 of the Charter.



242. neither the obligation to accept the offer of a job seeker performance

the public service cannot be assessed separately, but as part of this

the position of the corresponding legal relationship. But it is related

the central question, which is, in the case in question to be answered, and whether it can

the public service is considered to be forced labour for the situation when the

the candidate included in the relevant evidence on the basis of your own application, without

to the submission of this application, and also had an obligation to request at any time

for their leadership in it. In this context, it is necessary to deal with

the purpose of the inclusion of the applicant in the register, as well as the way in which

this purpose can be achieved through the obligation to perform

public service.



243. employment legislation in accordance with title II of the second

part of the Employment Act, which forms the legal basis of the registration

applicants for employment in their summary done article. 26 paragraph. 3 of the Charter.

This provision guarantees citizens who, without their guilt cannot carry

your right to obtain work means for its necessities (and at the same time

are not incapacitated for work within the meaning of article. 30 paragraph. 1 of the Charter), that they

will be provided by the State in a reasonable range of tangible collateral.

Ústavodárce this committed the State to adopt such legislation,

that at least partly alleviate the negative consequences for the individual and

persons dependent on him may have a loss of income, and provide him space

to be able to deal with this situation. What is meant by reasonable

scope is given without further only from the text of the Charter. To the definition of

This concept, as well as setting the conditions for the application of the

the law is called the legislature, which belongs to consider all of the other

connection options, including public finance [cf. find of the day

April 23, 2008, SP. zn. PL. ÚS 2/08 (N 73/49 SbNU 85; 166/2008 Coll.), point

59]. However, the solution chosen By the operative must respect the purpose of the given

guarantee and its content must not preclude achieving (point 52

the cited Award).



244. the conclusions follow on previous case law concerning

social rights [e.g., findings of 5 October 2006, SP. zn. PL. ÚS 61/04

(N 181/43 57 SbNU; 16/2007 Sb.) and of 12 June. March 2008, SP. zn. Pl. ÚS

83/06 (N 55/48 SbNU 629; 116/2008 Coll.)], that the Constitutional Court developed

in his award dated June 24. April 2012 SP. zn. PL. ÚS 54/10 (186/2012

SB.) construction test of reasonableness as a tool to review the intervention

the legislature in the area of constitutionally guaranteed rights. This

the test to be applied below in relation to the contested legislation,

It reflects both the need to respect the rather large diskreci

the legislature, as well as the need to exclude any excesses. It consists

the following four steps:



1 definition of the meaning and substance of) social rights, i.e. his essential

content,



2) assessment of whether the law shall not affect the existence of social law

or the actual realization of its essential content,



3) assessing whether legislation pursues a legitimate aim, therefore, is not

a major reduction in the overall standard of arbitrary fundamental rights,



4) consideration of the question of whether the legal means used to achieve

reasonable (rational), though not necessarily the best, the best,

the most effective or the wisest (point 48 of this award).



245. You can add that in addition to the tangible collateral monitors legislation in accordance with

Title II of the second part of the law on employment as a whole and other purpose, and

it provide active cooperation in the search for new applicants

employment. It contributes to the implementation of the obligations arising from article. 1 (1). 3

The European Social Charter and article. 6 (1). 1 of the International Covenant on

economic, social and cultural rights and in a wider sense and above

the rights referred to in article 21(2). 26 paragraph. 3 of the Charter.



246. The legislature is empowered to lay down the conditions and the extent to which you can

exercise the right to reasonable material to ensure the unemployment benefits in

the meaning of the article. 26 paragraph. 3 of the Charter, including the conditions for inclusion in the register

job seekers and remain in it, in addition to the right to

unemployment benefits based on other rights, such as. the coverage of the

health insurance from the State. Undoubtedly, so may require

providing synergies and carrying out other duties for the purpose of

to ensure that the assistance will be provided for persons who have just

interest in the work, but do not have the option to hire. However, in its sole discretion

must take into account the fact that the person against whom the claim is directed,

the inclusion in the register of job seekers seek their law

the rights laid down in confidence, that their purpose is to mitigate the impact of the loss of

employment on their financial situation and cooperation in search of new

employment. This confidence is enhanced not only the question of the constitutional guarantees

This right, but also the fact that the condition for entitlement to support in

unemployment is a previous period of employment in the framework of which these

the person required to pay premiums for social security. The inclusion in the

the evidence is also the only way that they can be enforced

some of the reason that they have become unemployed.



247. The Constitutional Court has considered that the public service is a public

relationship, whose content is the performance of the activities of the meeting of the characters dependent work

within the meaning of section 2 (2). 1 of the labour code. What sets it apart from the basic

labor relations (second sentence of section 3 of the labour code), is in the first

a number of mutual position of its participants. While the conclusion of the working

a contract employee and the employer formally set down in a flat

the status and its content is the result of their identical expressions of will, in

the case of the public service as to the relationship between the jobseeker and the

the regional branch office of work, which, however, it acts as the authority

the public authorities. His contract, however, is the specific offer

its conclusion depends on the administrative discretion of the competent authority. The candidate

It has no ability to influence, what will be its subject, or where and how

It will be a long time to perform. The offer may only reject as a whole,

as a result, however, will be his removal from the register of applicants. An exception

represents the only case in which the candidate had serious reasons for refusal in

pursuant to section 5 (b). (c)) the Employment Act nor there referred to "the reasons for the

worthy of special attention ", which is the only one open to the concept in the

under this provision referred to the positive, however, do not produce enumeration

the option for a pronouncing a mere disagreement with the offer. The following grounds namely

heading to exceptional cases, when it is appropriate to request mitigation of possible

unfair consequences of this obligation. Stress can be but also other

the differences between the public service and labour relations. How

It will be shown below, in the case of public service does not have its executor the right to

on the reward. These persons are not covered, nor the cost to them in

connection with the performance of the public service, and does not apply to it nor

a number of provisions in the basic labour relations in different

protects the position of staff directions (e.g. on holiday).



248. Referred to is reflected in the constitutional law of evaluation of the contested

provisions and in its own way speaks volumes about today's legal protismyslnosti

State. If a person who has lost a job, decides

ask for his mediation, after two months must register

take that, in the case of a tender will be for a period of up to half of the laid down

weekly working time (article 79, paragraph 1, of the labour code) to perform in

essentially dependent work for the State of the specified entity, and without the right to

salary and substantially lower level of protection than the staff provides

the labour code. In other words, the State makes the exercise of its rights,

She admits to unemployment, by eating in the range

in fact, half of the committed orders dependent work. The candidate, however,

Yet it remains formally unemployed, which means that they are denied the


the rights which workers in the employment relationship, by default, belong to, and

State may not provide consideration under the threat of sanctions otherwise alone

requires from any other employer. He remains the

many of the duties associated with his inclusion in the register of job applicants

employment (e.g., providing synergies of the regional branch office work)

and in your own interest is still forced myself a job search.



249. The rejection of the offer of public services (without a serious reason) means for

candidates always and waiver of rights, which may significantly

reflected in its financial situation. These consequences can be illustrated by the

the example of unemployment. That is, depending on the time after

which is paid, 65%, 50% and 45% of the average monthly

net earnings from the previous job (cf. § 50 et seq. closer.

Act No. 435/2004 Coll., on employment, as amended),

but not more than 0, only 1.58 average wage in the national economy for the first

up to the third quarter of the previous calendar year. In the case of the submission of

the relevant application in 2012, this means that the maximum amount can

reach up to 13 761 per month. Alert can be but also on the level of

health insurance, which in the case of persons without taxable income

represents a 13.5% of the assessment base, which is the minimum wage (section 2

and 3b Act No. 592/1992 Coll., on the public health insurance

insurance, as amended). The amount thus calculated,

that currently amounts to 1 080 CZK per month, in the case of disposal must be

jobseeker also paid for, because the State would be for him

nehradil health insurance. Already the obligation to pay the latter

the amount may, depending on the particular situation of individuals represent

so intense burden, that from his perspective there will be other

alternative than to accept the offer of public services.



250. The above defined ambivalentnost the status of a job applicant

deepens the negative effects of the impugned legislation acts in the sphere of

his fundamental rights and freedoms. It's not just about the freedom to decide

whether the civil service to accept, or not. If the purpose of the measures

State in accordance with the Act on employment mediation of employment, then the

understandable that the candidate cannot mediated job offer

unreasonably refuse (cf. in this connection, the approach of the European Court

for human rights, for example. in the decision of 4 June 2002. May 2010 in the matter of

complaints against the Netherlands no Schuitemaker 15906/08). The condition that

the candidate is unable to obtain resources without their guilt for their necessities

the work, in this case was an important way

called into question. Public service and the related reason from the record disposal

job seekers according to § 30 paragraph. 2 (a). (d)) of the law on

employment but does not lead to a job. As is apparent from the

comments the Minister of labour and Social Affairs, its purpose is to be

found in the security of the State, the fungibility of synergies, i.e.. in order to

points to the socially needy persons and has not been abused ("be

the unemployed not to pay "). At the same time be the means of maintaining or

the recovery of the working habits and prevention of social exclusion

the unemployed. The contested provisions, however, these purposes only

seemingly determined to accept them and offer public services already

After two months of unemployment, in no case does not constitute suitable

and a reasonable means to achieve them.



251. In particular is not at all clear what reason assumes

the legislature loss of habits already after two months

unemployment. In the case of persons employed for several years

or even a decade, does not have such a general assumption of any

justification. Undoubtedly, however, raises questions, and whether such a method

the performance of the work may lead to maintain or regain working habits.

Individual guarantees, that the constitutional order in the form of the prohibition of delimits

forced labour and the right to free choice of profession, but also the right to

fair compensation and the right to adequate material to ensure in

unemployment, on the whole, formulate imperative for the legislature to

legislation relating to the performance of work has always reflected its

the importance for a free and dignified life of the individual. Therefore, the performance of the work

the legislature cannot be seen in isolation, only as the actual activity, without

taking into account all other relevant aspects (cf. section 235 of the

the award). The condition contained in § 30 paragraph. 2 (a). (d)) of the law on

employment applicant to the position, stop that if he wants to continue to receive

unemployment benefit or other performance, or if he is to be

continue to be provided by the synergy of the Office work, must be

available to get this help from the State, has worked. This implementation of the

According to Minister of labor and Social Affairs, even featuring

equivalent work performed within the public service, or "fair

the reward ", albeit in the form of" social benefits ". As you can deduce from his

comments, the public service is heading to persons who are "able and willing to

work ", with their" willingness ", which is a necessary

the prerequisite for remaining in the registration is just getting in the performance

the public service. The result is so completely opposite to the nature of the work, preview

than is apparent from the above constitutional norms. Conservation and duration

work habits has to serve such a pursuit, in which the

In addition to the activities themselves are completely disowned all her other natural

aspects, which give her a sense of power and has the motivation to its

performer.



252. For similar reasons, you can challenge the second purpose of the public service,

which is the prevention of social exclusion. The fact that the applicant

of employment shall be exercised by the public service, does not alter the fact that they continue to

remains unemployed and receives the revenue after the social

the support from the State. Therefore, you can hardly find support for the conclusion of the

improve his social status. The Constitutional Court, by contrast, considers that the

with regard to the specifics of the public service is its effect exactly the opposite.

The State acknowledges the work of its agents a lower value than is the case in

other similar cases, which is in itself translates into the way

how the performance of the public service perceives a wider public. In this respect, however, the

You cannot neglect the similarity between the public service and performance

the sentence works of general interest (article 65 of the Criminal Code), in which the

as a result, in the eyes of the public, blurring the differences between the two institutes. About

It suggests in particular that the nature and scope of the work to be performed are

similar, that usually are the same and the "supervisors" to their proper

performance and that in both cases this occurs performance without

the reward. Referred to the result of this is often compounded by the visible marks

the staff concerned armor with the words "public service". In its

a summary of them, the State is treated in the same way as with the persons

those convicted of an offence, and only because of that became the

unemployed and apply the Act's rights, without

violated any legal obligation. The obligation to accept the offer

public service therefore does not prevent social exclusion, but its

deepening and its executors, whose work has outwardly (for

other people) the same elements as the sentence, may cause humiliation

coinciding with their own dignity.



253. The contested obligation to finally not be considered nor reasonable

means to prevent abuse of the aid from the State, which

You can achieve even more respectful manner. The offer of public services can have (and

in many cases, this effect has no doubt) for those applicants who

the support from the State to use, although they could make themselves

resources on living his work. These candidates have no reason to accept

the civil service under the specified conditions, because it will, of course,

be regarded as disproportionate in relation to the implementation provided by the

State, where appropriate, will present an obstacle for them to work in the black economy.

Abuse of the aid, however, cannot be presumovat for all applicants, and

in particular, in the case of certain groups of applicants, such a situation certainly will not

the rule of thumb. As an example, for which proof will each pay

the attention of the people in your neighborhood, you can undoubtedly bring persons

have lost their job a couple of years before reaching retirement age and over

all efforts cannot find new jobs. The end of these persons

two months of generally lost their work habits, yet even to them

turns out this resource, if requested for inclusion in the register of job applicants

employment. Without any provinily against the rules,

will be forced to adopt and carry out a public service for the above

conditions, often for several months. Of the end

While it was undoubtedly adresnějšími can be achieved by measures that would

generally, only those candidates who actually do the conditions

to remain in the relevant register, for example. posilněním control

mechanisms.



254. The shortcomings, which call into question the competence of the Institute

be an appropriate or proportionate means to achieve the objectives pursued,

You cannot delete or for the use of administrative discretion on the part of the regional

branches of the Office work in the selection of candidates. The basic problem is

the fact that these regional offices do not have the obligation, but rather only the possibility

to offer you the performance of a public service, which is subject to a number of places

agreed with the municipalities or other bodies. Public service in the range of to

20 hours a week, whose performance is the place of any reward motivated only

the threat of sanctions, the disposal of the registration of job seekers, of course

not by the substantial or even most of the candidates perceived

as an opportunity, but as a burden. A condition where will depend on the

the number of contracted places, whether a person will or will not perform

the public service, therefore it will not be the exception, that the situation of the two applicants,

who are the relevant criteria in a comparable position,

the civil service will have to perform only one of them. In the result


you will be a group of tenderers have to all claims arising out of its

the inclusion in the register of jobseekers actually work, while

other not, without this inequality can be justified on other

than as a result of randomness. In addition, it opens up the space

for any abuse of discretion, because a certain person will be

You can in fact, i.e., without any justification, omitted from this

menu.



255. The wording of § 18a Act on assistance in material need, shows that the law

does not contain the criteria according to which candidates are selected for employment,

which is to be made the offer public service performance. Their determination

therefore depends up on the practice of individual regional branches of the Office work,

giving them a very wide scope for administrative discretion.

Individual variants of setting these criteria you can imagine

several. You can for example take into account. the length of the period during which a person is

included in the registration of job seekers, as well as the qualifications,

the economic and social position, marital status, age, or health

etc. Any key, however, will not be able to change it, that offer public

and services associated with it the obligation of a tenderer to accept it will touch

only the part of the applicants, which are encouraged in the registration of more than

two months. Not about inequality, which could be aprobovat

simply by reference to its preventive function. If it was possible for the public

consider the service exclusively for measures against the abuse of position

job seekers and the related implementation, then it could be

no doubt accept that its offer will be made according to a certain

in advance of a defined key only in relation to certain applicants and already

the very possibility of making will operate made. Such a solution

The Constitutional Court confirmed, in the case of the implementation of random tax audits

[cf. find dated November 18, 2008, SP. zn. I. ÚS 1835/07 (N 196/51

SbNU 375), including the different opinions of Judge Ivana Janů, and

the opinion of the Assembly, dated 8. November 2011, SP. zn. PL. ÚS-St. 33/11

(368/2011 Coll.), which was superseded by the legal opinion contained in this

the award]. Comparison with the tax inspection but ceases to be tight, if

taking into account other content elements of the public service, i.e. the

performance of the work up to 20 hours a week for several months. As

a duty so onerous that the Group of applicants,

that was the performance of public services offered, substantially amended

the conditions for the application of the entitlements of tangible collateral for case

unemployment.



256. in its summary, with regard to § 30 paragraph. 2 (a). (d)) of the law on

the employment created two groups of applicants for employment, for which

fundamentally different conditions for remaining in the relevant registration, and

specify the group to which the applicant belongs, depends to a large extent on the

the wide discretion of regional branches of the Office work. Due to the limited number of

places will be deciding who will be offered to the exercise of public

the service, always a certain element of randomness. Such a disparity between the two

groups of candidates which will be basically occurring every time, unless

the public service is offered to all candidates, always already may be as a result of

its not taking out of registration, devoid of constitutionally aprobované

justification and is contrary to the prohibition of arbitrariness, resulting from the principle of

the rule of law in accordance with article. 1 (1). 1 of the Constitution.



257. The fact that job seekers can defend against

the decision to exclude from the evidence in the administrative justice system, not

not disputed those conclusions. The appropriate action is to defend against

disposal, for which was not made lawful reasons, which will be in the case of

the reason, according to § 30 paragraph. 2 (a). (d)) the Employment Act mean and

the assessment of whether the applicant had the right to refuse service to the public from the serious

reason, within the meaning of section 5 (a). (c)) the Employment Act, i.e.. for example. from

because the kind of public service offered is clearly inappropriate so far

the professional qualifications of job seekers. This review, however,

not lead to the removal of the structural problems of the period

the Institute, which are in addition to the mentioned and other inequalities in this

the award named the shortcomings. Those are the result of the contested legal

editing and can be removed only by the intervention of the legislature.



258. The Constitutional Court notes that the purpose of the legal regulation of mediation

employment under Title II of part two of the Employment Act and the public

service is an important way out of kilter. Due to the fact that the public

the service offers to the unemployed only free performance set

work activities can be obliged to exercise it in the range of up to 20 hours

a week for job seekers in all the above limitations

be considered a disproportionate burden for the application of the law

defined rights, which he attributed to the tangible collateral

unemployment. With regard to the obligation laid down by law, which shall

each person applying for a job in the course of its

keeping records of job applicants. In the opposite case, the

Indeed, none of these rights apply. All of these facts

preclude the assessment of the contested obligation to exercise the offered

the public service was based on the assumption that the subject consent

candidates to be included in the register. On the basis of the

on the contrary, possible to conclude the opposite, namely, that section 30 paragraph. 2 (a). (d))

the Employment Act provides for the obligation of the candidates unreasonable performance

the work, whose refusal of registration sanctions disposal. In this sense, the

Finally, in the alternative, you can also refer to the opinion of the Committee of experts of the ILO, under the

which would be the making of the right to unemployment benefits, worker

It was founded on the basis of his participation in the insurance system and a certain period of time

of employment, additional requirement under penalty of loss of employment

This right may constitute a prohibited forced labour [International

The Labour Office. Eradication of Forced Labour. Report III (Part 1B).

General Survey concerning the Forced Labour Convention, 1930 (No. 29),

and the Abolition of Forced Labour Convention, 1957 (No. 105). Geneve,

2007, p. 70, paragraph 129, accessible on the

URhttp://www.ilo.org/gb/WCMS_089199/lang--en/index.htm]. The Constitutional Court

therefore came to the conclusion that, in the case of this obligation are infused with both

the characters of forced labour within the meaning of article. 9 of the Charter and article. 4 of the Convention, or article. 2

paragraph. 1 the Convention on forced or compulsory labour.



259. In conclusion of this part so remain the last of the highest

questions, and whether the contested obligation cannot be classified under any of the

exceptions to the prohibition of forced labour provided for by the Charter, where appropriate, of the Convention

or any other international treaty. In this context, the Constitutional Court

the Commission notes that the only account of the coming of the exception from this prohibition can be

found in the argument of exceptional circumstances as a result of economic

the crisis, which were formulated by the Minister of labour and Social Affairs. This argument

in his opinion, should be classified under article 87(3)(a). 4 (4). 3 (b). (c))

The Convention, according to which the compulsory or obligatory work service shall not be considered

required in the case of an emergency or calamity threatening the life or

the welfare of the community, and under the article. 2 (2). 2 (a). (d)) of the Convention on forced or

compulsory work, that this exemption shall provide for the work of the sum in

cases of exceptional circumstances that threaten or could endanger the

the life or normal living conditions of the population or its

part. Similarly, but it was possible to argue no doubt article. 8 (2).

3 of the International Covenant on Civil and political rights, under which the

forced and compulsory labour shall not include any service enforced in

exceptional cases or when the disaster threatening the life or well-being of

the community, and not least article. 9 (2). 2 of the Charter, according to which the

the prohibition of forced labour or services does not apply to the service that is required in

the case of the danger that threatens the lives, health or considerable property

values. The Constitutional Court, however, such evaluation strongly rejects.



260. The voucher to the ongoing economic crisis is all very vague and

at all entails, how to overcome it, respectively.

overcoming its consequences, the obligation to help job seekers

accept the offer to perform a public service. Its purpose, though you can have

the reservations in relation to the ability of the obligations to achieve it,

primarily to protect individual applicants before the consequences of (not only)

long-term unemployment. It does not mean that it would not be compatible

with the public interest on the reduction of unemployment, and that its achievement

It was not possible in the wider context to contribute to the economic development,

such a link, however, is very abstract and her possible

Basically any work to justify the obligation, or

The Constitutional Court cannot be considered as sufficient. Building an exception would

It was possible to accept only in case, if an obligation was

set just for the purpose of preventing or eliminating the risk that

threatened the lives and health or assets (wealth). From the nature of

things must go about the extraordinary nature of the obligations, which

does not preclude their determination for a longer period of time. The obligation on applicants for

employment to carry out the public service but there is no way to remove

some of the emergency situation, but is conceived as a permanent resource in

under the active employment policy, through which they have to be at

the applicants maintained working habits and to prevent their

social exclusion. For these reasons, it cannot therefore be classified under

any of the above exceptions.



261. For all these reasons, the Constitutional Court came to the conclusion that the obligation to

job seekers accept the offer to perform the public service

which is subject to the retention of records of job applicants is

contrary to the prohibition of forced labour within the meaning of article. 9 (2). 1 and article. 26

paragraph. 1 of the Charter, article. 4 (4). and article 2 of the Convention. 8 (2). 3 (b). and)

The International Covenant on Civil and political rights, as well as

violates a prohibition of arbitrariness under article. 1 (1). 1 of the Constitution and the principle of equality in the

dignity, according to the article. 1 of the Charter, or the right to preserve the human


dignity, according to the article. 10, paragraph 1. 1 of the Charter.



VII./d



Assessment of compliance with the right to adequate material to ensure in

unemployment benefits under article. 26 paragraph. 3 of the Charter of



262. As regards non-compliance with the law namítaný on the appropriate material

providing unemployment benefits under article. 26 paragraph. 3 of the Charter, the Constitutional Court

It is deemed appropriate to establish the reasoning set out in particular in recitals 243

and 244 of this award. Lawmakers belong to lay down a specific way,

the application of this law will be implemented, as well as to carry out its

any changes made. It selected the law but may not be

effective denial of social rights (find SP. zn. PL. ÚS 2/08,

paragraphs 54 and 56; also find SP. zn. PL. ÚS 54/10, paragraphs 46 to 49). Must always

be taken to its essence and purpose (article 4, paragraph 4, of the Charter). The constitutional

the Court then proceeded to assess whether the contested reason disposal of records

job seekers according to § 30 paragraph. 2 (a). (d)) of the law on

employment will hold up. the test of reasonableness (section 244 of this award).

On the basis of already defined the essential content of this social law

which is partially mitigate the negative consequences of that for the individual and

persons dependent on him may have a loss of income, and create the space to

to deal with this situation might (point 243 of this award),

doing so could proceed to the second step of the straight of this test, which is

assessment of whether the provisions of this essential content

without prejudice.



263. Entitlement to unemployment benefits is fixed and cannot be excluded,

that the legislature will extend or reduce in the future. Any changes will

they can concern both the amount of aid, so the length of the support period or

the conditions under which the claim arises or will take. However, it is always necessary to

consider whether the law provided for a range of rights, whose purpose is the material

ensure the unemployment, will continue to allow the real application of the

of constitutionally guaranteed rights. At the same time must be taken into account

It said the claim is for job seekers to be subject to the fact that in the

the relevant period earned pension insurance period of at least 12

months, after which it had to be paid for this insurance [§ 39, paragraph.

1 (a). and) of Act No. 435/2004 Coll., on employment, as amended by Act No.

382/2008 Coll., in conjunction with section 11 of the Act No 155/1995 Coll., on pension

insurance, as amended]. Unemployment is

So actually guaranteed by the State-created insurance

system with mandatory participation of workers in employment, persons

self-employed or other legal persons.

Any claim they may arise by law occurs

insured event, already envisaged the fulfilment of the other conditions

for them, however, be constituted a legitimate expectation that, in this case

receives a certain filling. Any change to the law laid down the conditions for the

the emergence and duration of this claim must therefore take account of this fact.



264. The determination of the new reason the disposal of the registration of job seekers

as a result of the rejection of the offer to perform the public service operating at the same time

as the change of the conditions for the emergence and duration of entitlement to aid in

unemployment, as this claim may arise only registered

tenderers (§ 39 of the law on employment). Its consequence is in the first

a number of the fundamental limitations of the claim, that the expiry of the two months becomes

entitlement conditional acceptance of any offer. This is undoubtedly a very

a major change, which may, depending on the age of the applicant who refuses to

building the menu, refer to the shortening of the period of support of 3, 6 or even

9 months and have major negative projection of its social situation.

Already for this reason therefore raises doubts as to the fact that

the legislature not ignored the legitimate expectations of the participants of this

insurance in relation to the period of decisive and determined the appropriate

transitional provisions for such changes has created a longer

the time frame. Even before the Constitutional Court could consider the possible

the intensity of the intervention in terms of the principle of legal certainty or confidence

in the right, however, he had to ask a question of a more general, and whether these restrictions

You can accept with regard to the content of the obligation.



265. The Constitutional Court reiterates that the public service is

public relation, whose officers, if the applicant

employment, despite the performance of the work to the extent dependent up to 20

hours a week still formally unemployed and they are denied the rights,

that would make them as employees belonged in the basic labour

the relations. Their obligation to accept the offer to perform it for them

actually based a new condition for the granting of aid in the

unemployment, which consists in the performance of activities which in fact is not

anything other than employment, and changes the meaning of the

support, as this is how openly stated in his observations to the Minister

labour and Social Affairs, becomes the reward for public service. It is but

completely belied by the purpose for which it is to be unemployment benefits

provided, and above all, for which it is to be covered by the insurance.

The candidates's performance, which by law should have a claim already in

as a result of the insured event that it does, it must again work. In any of the

the case is not only an obligation, the purpose of which should be particularly

checking whether they are actually given the conditions for entitlement, for example. whether

the candidate actually cannot accept employment without guilt. Without

Noting the end cannot leave or an unjustified inequality, which in

as a result of the determination of the new reason the disposal of applicants for registration

employment referred to in section 30, paragraph. 2 (a). (d) the Employment Act) between

the applicants arises.



266. The following summarized the reasons (in particular, closer to 246 258 points) led the constitutional

of the above, the Court concluded that as a result of the contested provisions

unemployment benefits, as well as all the other transactions that become

provides as material ensure the unemployment benefits within the meaning of article. 26

paragraph. 3 of the Charter, have become the means by which the State under sanctions for their

denial and in breach of article. 9 Papers of candidates performance enforces

the public service. At this point, it should be the same reasons to admit a wider

no constitutional relevance. Warranted and concluded that the

the contested legislation touching the material existence and the actual implementation of the

the essential content of the constitutionally guaranteed social rights on a reasonable

material providing unemployment benefits under article. 26 paragraph. 3 of the Charter by

already after two months, and, in some cases, without any

objectively measurable candidate reasons about decommissioning,

employment of these candidates with documented the consequences of loss of

adequate physical security. The provisions of § 30 paragraph. 2 (a). (d)) of the Act

employment cannot compete in the second step of the test

of reasonableness.



VII./e



Assessment of compliance with the right to equitable remuneration provided for in article. 28

Of the Charter



267. In conclusion of this part of the award, the Constitutional Court dealt with the issue of compliance

the contested provision with the right to fair compensation for the work under the

article. 28 of the Charter. Its essence is the principle that for dependent work in

any form of employment relationship belongs to the staff remuneration,

While in this case the legislature belongs to the wide space for

the manner in which discretion shall ensure its implementation, including the possibility of closer

regulate the way and the amount of remuneration. Referred to shall not preclude the

the performance of the work for the body were even without remuneration, to

which the legislature may establish a reasonable form of legal relationship. Always

However, it must be a work that is carried out under these conditions

voluntarily, with the rejection of her performance may not be a reason for

the imposition of sanctions. Any other obligation, which would be its executor

the result of this refusal, would have to with this legal relationship

factually be related and not be so burdensome that it

in fact, she worked as a means of coercion, for the performance of the work. In

such a case would this person had to be considered

"employee" within the meaning of article. 28 of the Charter, because it would not be possible to

assume that under these conditions, performs work on the basis of the

free speech will. The absence of a right to remuneration would necessarily

She had to lead to the conclusion of a violation of this article.



268. for the assessment of compliance of the contested provisions with this law will

answer two questions, and whether it is the principle contained in article. 28 of the Charter

apply to the performance of public services and, if so, whether it can be considered a fair

consider the performance reward, which the law accords to jobseekers as

material providing unemployment benefits. The first question is to be noted that

Institute of public services under section 18a of the Act on assistance in material need, while

provides a framework for the performance of activities which can have a character dependent work

without the right to remuneration, with a rejection of its activities, however, this law

does not associate any penalty. Such penalties cannot be negotiated nor in

the public nature of the written contract, which represents the legal basis for the

the performance of the public service, as the regional branch office, work is missing to

such arrangements necessary legal authority. The

characteristics, however, apply only in the case that is a public service

exercised by persons in material need or persons in the register

applicants for employment for a period not exceeding two months. If on the contrary

as job seekers were kept for a longer period, then the

implement the obligation to accept the offer of the public service in accordance with section 30, paragraph. 2

(a). (d)) of the law on employment and in terms of the article. 28 of the Charter would have to

be considered employees for whom a dependent work must belong

the reward.



269. It is clear that the absence of any rewards would in the case of obligations

job applicants to perform the public service led to the undue

intervention in the nature and meaning of their rights to equitable remuneration

for the work, since such a right would be completely destroyed (the second step of the test

reasonableness, cf. section 244 of this award). As already mentioned, of the

the point of view of the Charter is to be dependent of the work seen in all his


aspects, and not only as to the activity itself. Just reward for

the work represents a quid pro quo, that encourages employees to its performance

and best illustrates the relative position of the two parties in labour

the relations. At the same time employees allows you to create the conditions for the

a life of dignity and the creation and maintenance of social relations. It is therefore very

difficult to understand how the public service without

wage lead to restoration and conservation work habits. The law in this direction

creates the executors of even worse conditions than inmates in

imprisonment, which in the case of their inclusion to

the performance of the work shall be entitled to remuneration in contrast, guarantees (§ 33 (1) of law No.

169/1999 Coll., on the execution of the sentence of imprisonment and change some

related laws). Another approach would be for prisoners

calling into question the very feature that has them this

the inclusion of meet [cf. judgment of the Federal Constitutional Court of June 1.

July 1998, SP. zn. 2 BvR 441/90 (BVerfGE 98, 169)].



270. the second answer from the remains of the questions, which goes to the

What can be considered for fair compensation. On this place already but

It is sufficient to refer only to the above argument that follows the

unemployment benefits and other rights, which are the appropriate material

the collateral for this case, the different purpose and cannot be regarded as remuneration

or in consideration for the performance of public services. For an illustration of the absence

any context you can point out that the amount of such benefits is amended

According to the criteria that have no connection in relation to the pursued

the work. The executor of the public service, which was made the offer after

two months in the register of job applicants, will receive several

months of all the transactions, including unemployment benefits. However, if after

the end of the support period to continue to perform the same job, then it will be

occur only "in Exchange" for other rights, in particular for the payment of

health insurance. So it will be, eventually, during the time for which the

will not receive unemployment benefit due to the payment of severance pay

(cf. § 44a of the Employment Act). The Constitutional Court therefore notes that the

§ 30 paragraph. 2 (a). (d)) the employment act not in accordance with the law

staff on fair compensation for the work referred to in article. 28 of the Charter, respectively.

also according to the article. 7 (b). and) of the International Covenant on economic,

social and cultural rights.



271. the reason for the derogation in question does not apply in relation to the

options for job seekers to perform the public service pursuant to section 18a

Bill on assistance in material need, whose abolition in the relevant part of the

the proposal also seek applicants. Public service remains a legal

the form of the performance of activities for any of the purposes as defined in this

provisions, whose recovery from persons in material need or job applicants

employment depends fully on their consent. The question of what incentives will be

These people have for her performance, which, in this context, of course,

the question then arises, already exceeds the scope of this constitutional evaluation.



VII./f



A summary of the



272. Of all of the above reasons, the Constitutional Court came to the conclusion that section 30

paragraph. 2 (a). (d) the Employment Act), as amended by Act No 367/2011

Coll., is in contradiction with article. 1 (1). 1 of the Constitution, article. 1, article. 9 (2). 1, article. 10

paragraph. 1, article. 26 paragraph. 1 and 3, and article. Article 28 of the Charter. 4 (4). 2, of the Convention and

article. 8 (2). 3 (b). and) of the International Covenant on Civil and political

rights and article. 7 (b). and) of the International Covenant on economic,

social and cultural rights. The proposal to repeal section 18a, paragraph. 1 of the law

No 111/2006 Coll. on assistance in material need, in the wording of Act No 366/2006

Coll., in part expressed by the words "and persons in the register of job applicants

job ^ 54), in which the plaintiffs ' arguments with regard to the

coming into account assessment of compliance with article only. 28 of the Charter, reason

did not find.



VIII.



Assessment of the conformity of the new constitutional obligations of registration providers

health services in accordance with § 121 paragraph. 1 and 5 of the Act on the health

services



273. The appellants and a group of senators, which has in this management position

the next participant, see § 121 paragraph mismatch. 1 and 5 of the law on

health services and the principle of the prohibition of retroactive legal

the security referred to in article. 1 (1). 1 of the Constitution and with the right to do business under article. 26

paragraph. 1 of the Charter. They point out that non-State operators

medical equipment, carrying out their activity on the basis of the

the decision to register under the Act on health care in non-State

health care facilities must apply for new permission to provide

health services. The application implies reuse

proof of certain documents, in which these bodies may

give rise to a disproportionate burden. As an example, cite the doctor's operating

private practice, no longer will have to-despite its experience-new

to prove (and, where appropriate, Supplement) their qualifications for the performance of

profession in a particular field. Objections to the plaintiffs but also against

the demise of the existing permissions of the Act to be the end of the

period 36 months from the date of entry into force of the Act on the health services,

without prejudice to the operators of non-State health establishments

they have been guilty of any wrongdoing. In the course of the oral proceedings, the proposed

the representative of the Group of Senators that, in the case of § 121 paragraph. 1 of the law on

health services not to cancel all the provisions, but only its

part (paragraph 174 of this award), the Constitutional Court nevertheless stresses that in

control of inspection standards, according to the settled case-law the narrowing of design

or its withdrawal possible.



VIII./a



Diction and the context of the affected provisions



274. Although both proposals are directed only against § 121 paragraph. 1 and 5 of the law on

health services, with regard to the content of the link is considered

The Constitutional Court considered appropriate to cite not only the full text of these provisions,

but also the text of § 121 paragraph. 4 of the same Act. These provisions read as follows:



"The transitional provisions



§ 121



(1) a person who is authorized to operate a non-State medical facility

on the basis of the decision on registration according to the existing law on health

care in non-State health establishments (hereinafter "registration"),

on the basis of registration may provide health services

correspond to the nature and scope of health care referred to in the marketing authorisation, and that after

a maximum period of 36 months from the date of entry into force of this Act, if it is not

Furthermore, unless otherwise specified; This person is considered to be the provider. The holders of the

registration under the existing legislation have the right to issue

permission for the delivery of health services under this Act for

provided that the requirements necessary to demonstrate to the granting of registration referred to in

of this law.



...



(4) the Registration shall expire on the date of the entry into force of the decision on

granting permission to the provision of health services, but not later than

the expiry of 36 months from the date of entry into force of this Act. This does not apply,

If so requested by the supplier referred to in paragraph 1 for permission to

the provision of health services within the time limit laid down in paragraph 5 and the management

the application will not be legally completed in 36 months from the date of acquisition

the effectiveness of this law; in this case, the registration shall cease to

the date of the entry into force of the decision on the application. Registration of qualifying

to operate the device, medical emergency service provider

referred to in paragraph 2 shall lapse on the expiry of 12 months from the date of

the entry into force of this law.



(5) if the supplier referred to in paragraph 1 it intends to provide health

services after a period of 36 months from the date of entry into force of this Act,

shall, within 9 months from the date of entry into force of this Act, of the grant of the

permission for the delivery of health services. Request for permission

to the provision of health services includes the elements listed in section 18

paragraph. 1. The competent authority is obliged to issue a decision on the application

not later than 36 months from the date of entry into force of this law. "



275. The Constitutional Court introduction the review of these provisions, the law

a new way of health services edited by the legal relations in the area

the provision of health care or health services, and from the date of

the effectiveness of the rules binding for all

the provider. In order to safeguard the continuity of the provision of health

the services of this law had to deal with the question of the legal status of

their current providers, including more of the validity of their

permissions according to the previous legislation. The contested provision thus makes

in relation to non-State health establishments, operators who

Yet, to provide health care on the basis of the registration according to the already

ineffective health care act in non-State medical

devices. As for the transitional provisions, on the basis of these

bodies temporarily (for the period of up to 36 months from the date of acquisition

the effectiveness of the Act) granted a status of providers of health services

under the law on health services. The same notice was under section 121

paragraph. 4 this Act shall be limited and the validity of the existing registrations to

which it is to be noted that paragraph 5 (and at the same time established a special

a simplified procedure allowing the listed entities) to obtain the

permissions so that they can provide health services continually, even after

expiry of this period. The issue of the decision is

application within 9 months from the entry into force of the Act on the health services,

which will include the elements listed in its section 18 paragraph. 1, which

simply means that it must be information relating to the

the applicant or his professional representative, as well as data concerning the

the scope of health care, which wants this applicant provide, places,

where it will provide, and the time period in which it will do. (I)

If doing so, the competent authority of such application has been finally

decided in the time limit laid down by law, 36 months from the date of entry into force of

This Act, the applicant could provide health services,

that correspond to the type and scope of health care services listed in the registration,


up to the time when the decision on the application shall take the legal power. This

at the time of his registration were allowed to expire.

The option to submit a permission request to the delivery of health services is

for the former operator of the preserved even after the expiry of 9 months

in accordance with § 121 paragraph. 5 of the law on health services, in this case the

but on her terms and her management will apply the General adjustment

of this law.



VIII./b



General starting points



276. Prohibition of retroactive (retroactive) law and policy

of legal certainty are part of the conceptual principle of rule of law in accordance with article.

1 (1). 1 of the Constitution [cf. award of 8 June 1995 SP. zn. IV. THE TC

215/94 (N 30/3 SbNU 227), the Constitutional Court of the Czech and Slovak

Federative Republic of 10 June 1999. December 1992, SP. zn. PL. ÚS 79/92

(finding no. 15, a collection of resolutions and of the findings of the Constitutional Court of Czechoslovakia, Prague:

Linde Prague, and with 2011, with 92], and therefore the possible non-compliance of the law, or

other legislation with them is the reason for its cancellation in the

control standards. The Constitutional Court in its previous decisions

define the difference between the concepts of right and wrong and retroactive in General

plane defined the conditions under which you can reverse the action of certain legal

standards considered acceptable (cf. summary contained in the finding of SP. zn.

PL. ÚS 53/10, paragraphs 144 to 149). In the case of a retroactive acting right

the legal standard is the emergence of a legal relationship prior to their efficiency under the conditions,

which afterwards, or if there is a change of the legal

relations arising under the old legislation, even before the effect

the new law. A retroaktivita in contrast, assumes that the new law

the legal consequences for the past does not constitute, in the past has really

However, legally qualifies as a condition of future legal effect or

for the future legal consequences based as it modifies the earlier

regulations.



277. In view of the above, the definition of the content of the contested provisions

in their case, can obviously only be considered a false retroaktivitě. On

Apart from the cases of the right, which is retroactive in principle inadmissible,

If it is connected at the same time the intervention into the principles of the protection of trust in the law,

legal certainty, or the protection of acquired rights [cf. find from day 4.

February 1997, SP. zn. PL. TC 21/96 (N 13/7 SbNU 87; 63/1997 Coll.), the award of the

day 13. March 2001, SP. zn. PL. ÚS 51/2000 (N 42/21 SbNU 369; 128/2001

SB.), from 6 December. February 2007, SP. zn. PL. ÚS 38/06 (N 23/44 SbNU

279; 84/2007 Coll.)], in the case of false retroactive noted

its generic, if not bezvýjimečnou, admissibility (see find sp.

Zn. PL. ÚS 53/10, paragraph 147, find SP. zn. PL. ÚS 17/11, paragraph 53). Applies,

that a retroaktivita is in accordance with the principle of the protection of trust in the right

If it is appropriate and necessary to attain the objective pursued by the law and

in the overall measurement "disappointed" the confidence and the importance and the urgency of the

reasons of legal changes will preserve the limits (cf. the decision of the

The Federal Constitutional Court of 7 July. July 2010 SP. zn. 2 BvL 14/02,

point 58). Already in the find sp.. PL. TC 21/96 in the end the Constitutional Court itself

He stated that the abolition of the old and the adoption of the new legislation is not necessarily linked with the

interference to the principles of equality and protection of the citizen's confidence in the law, to which the

occurs as a result of the protection other public interest or basic rights

or freedom. The decision of the legislature about how to resolve time conflicts

the old and the new legislation but is not constitutionally things random

or things will, but considering the conflict of values in the standing. To

the conclusion about the nature of a legislative solution to the conflict of laws of the time would

so, should lead the assessment of that conflict of values consideration

proportionality with regard to intertemporalitu. Proportionality can be

While characterized by a higher degree of intensity of public interest,

or the protection of fundamental human rights and freedoms, warrants a higher degree of

to the principles of equality and protection of the citizen's confidence in the right new

the legal regulations. The restrictions of the basic law must at the same time within the meaning of article. 4

paragraph. 4 of the Charter to save its essence and meaning. In the assessment of how

the legislative solution to that conflict of time plays its role as

not only the degree of distinctiveness of the old and the new legislation, but also other

the fact, as a social urgency introduction then referred to

legislation [cf. also the opinion of six different judges for the award of

on 7 December 2004. June 1995 SP. zn. PL. ÚS 4/95 (N 29/3 SbNU 209; 168/1995

SB.)].



278. As regards the alleged interference with the rights to do business according to the article. 26 paragraph. 1

Of the Charter, the Constitutional Court notes that this right can be an individual in a

the meaning of the article. paragraph 41. 1 of the Charter to claim only within the limits of the laws which it

are carried out. The provisions of the article. 26 paragraph. 2 of the Charter at the same time assumes

the possibility of limiting the exercise of certain professions or activities the law without

should specify the purpose of such restrictions [cf. find dated 20 June

2006 SP. zn. PL. ÚS 38/04 (N 125/41 SbNU 551; 409/2006 Coll.), item 29].

The legislature thus has a relatively wide available for a specific definition of the

the content and the method of implementation of this article, but even that is not an absolute. In

its discretion is bound by the particular article. 4 (4). 4 of the Charter, which prevents

the restrictions of the basic law, business, touching his

the essence and meaning of [cf. find dated May 23, 2000, SP. zn. Pl. ÚS

24/99 (N 73/18 SbNU 135; 167/2000 Coll.), the discovery of 12 June. July 2001

SP. zn. PL. ÚS 11/2000 (N 113/23 SbNU 105; 322/2001 Coll.), part VIII

(a). H]. However, it is Also obliged to respect the principle of equality in the rights

within the meaning of article. 1 of the Charter, or article. 3 (3). 1 of the Charter.



279. It should be noted that restrictions on the right to do business, as well as the limitations

the right to the free exercise of the profession, may relate not only to the way in which it has

be the activities carried out, but also the possibilities of this activity

to exercise. The legislature may provide that certain occupations or activities

may only be exercised by persons who meet prescribed conditions, typically

for example. qualification. The result of such adjustments, however, will be

always a fundamental restriction of rights under article. 26 paragraph. 1 of the Charter, in the case of those

entities that do not comply with these terms and conditions. Such inequality, which

the very nature of the touching of the basic law, the

the constitutional point of view stands only if the result of

arbitrariness and for different treatment of different groups of people will be

There is objective and reasonable grounds. It within the meaning of the present

the case-law of the Constitutional Court means that the limitations of performance options

certain professions or activities for a constitutionally aprobovaným to

in the case of each of the persons concerned to stand in a test

of proportionality [cf. find SP. zn. PL. ÚS 38/04, paragraphs 27 et seq., whether or not

find of the day 7. April 2009, SP. zn. PL. ÚS 35/08 (N 83/51 53 SbNU;

151/2009 Sb.)].



280. The above requirements apply not only to the content of any new

the conditions for the exercise of a profession or activity, but also on the time

framework for their implementation. Their sudden change, which would result in

the obligation of a person cease to carry on business, may, in

Depending on the situation of that person fundamentally alike in its

personal or property sectors. Coupled with her intervention in the basic law

According to the article. 26 paragraph. 1 of the Charter, therefore, has only provided that the

would be justified by an overriding public interest and would be a necessary measure

in order to achieve its purpose. Generally acceptable can be vice versa mark

such a way of implementing these changes, which will provide to the parties concerned

sufficient time for adaptation to the new conditions.



VIII./c



Custom assessment



281. The Constitutional Court in the case he had to deal with the question of whether the challenged

change the legal status of the provisions of the previous

operators of non-State health establishments does not justify the conclusion of

so intense intervention into their legal certainty, which would

justify a conclusion of their conflict with the principles of the rule of law in accordance with article.

1 (1). 1 of the Constitution. This question while referee along with potentially

interference to the rights to conduct business according to the article. 26 paragraph. 1 of the Charter, because in the light of

on the nature of the challenged provisions of the legal relationship concerned can be

assume that any following intensive intervention in the legal certainty is

i will touch this right.



282. the health services Act lays down the conditions for obtaining the

permission to the provision of health services, which its content while

restrict the ability to do business in this area, their necessity, however, in

General terms, without the Constitutional Court on this point expressed to

specific legislation, justifying the requirement of proper professional level

the provision of health care. Petitioners readjusted by design

in no way do not dispute. Violation of article. 26 paragraph. 1 of the Charter see only in

the way it is dealt with the question of the continuation of the permissions

the providers of health services, who after the effectiveness of the law on

health services carry out their activities on the basis of the registration

under the law on health care in non-State health establishments.

Specifically, rail against the prospect of the next delivery of health services

getting the new permissions according to the law on health services. Is based on

Yet the assumption that only as a result of this condition will be

the former operators of non-State health establishments, if the

the physical person, or their deputies, in the case of natural persons,

that do not have the required competence, or of a legal person,

forced to prove their professional specialisation according to Act No. 95/2004

The SB, while otherwise for them--specialization according to the rules

prior to this law. The Constitutional Court, with such assessment

does not identify.



283. Law No. 95/2004 Coll. in its transitional provisions in detail

determine how. whether or under what conditions, will

specialization acquired by existing legislation considered

specialization according to the new Act and its implementing regulations. As to the

the legislation, which took effect a few years before the effect of the law


on health services and relevant in relation to persons,

through which non-State health establishments provide

health care in accordance with current legislation. Already for the

the effectiveness of the law on health care in non-State medical

the devices could disposal capacity to exercise medical

profession under section 13 (3). 1 (a). and Act No. 95)/2004 Coll. lead to

cancellation of registration, which is, of course, also apply to cases where the

the conditions have not been met for it to be a specialization according to the previous

legislation considered a specialization according to the latter

the law. The contested provisions as regards the requirement of specialization

physicians, dentists and pharmacists are compared

the legal status of any change.



284. the means of obtaining the new permissions to provide

health services in accordance with § 121 paragraph. 5 of the law on health services

It is not for the current operator of the non-State health establishments

subject to the requirement of a higher or other qualifications of its staff, already

exercising the professions of doctor, dentist or pharmacist. If it can be

Therefore, in the case of the contested provisions at all to think about, that in their

as a result of further restrictions to the right leads to the business referred to in article. 26 paragraph. 1

Of the Charter, this may be only because of the time restriction options

to provide medical services on the basis of the existing registration and because of

resulting from the administrative burden, which is getting a new permission

necessarily associated. The first referred to the reason for the mention also the appellants.

The Constitutional Court therefore examined whether this measure, which sets out the new

the conditions for the possibility of the provision of health services, such as the intervention of the

the rights to perform certain employment or activity in the test

of proportionality.



285. The measures each other content related and can be seen

as a whole, because both are part of the solution to intertemporálních

the impact of the Act on the health services on the existing legal relations. The

the problem arises, however, in the first step of the proportionality test,

i.e.. identification of the purpose, which can be used to justify intervention in the basic law.

Above, it was stated that article. 26 paragraph. 2 of the Charter does not provide for specific purposes,

for which you can restrict protected by law. It leaves to the complainant

a wide space for their selection, it does not mean, however, that the intervention of the

This law could be arbitrary or unreasonable.



286. in the case of the contested provisions would be the purpose of the

the time limitations of the current permission and the related requirement of the new

permission to provide health services to formulate as interest on the

that after the expiry of the transitional period have pursued all providers

health services their activities based on the permissions according to the law on the

health services. This, however, is not sufficient for the purpose formulated from

for that reason, that alone includes the intention to restrict the right to conduct business according to the article. 26

paragraph. 1 of the Charter, which, however, cannot be an end in itself. In order to

stand up, his words would have to provide clear

the answer to the question, why is this restriction occur, thus why they have

all providers of health services just issued permission for

the effectiveness of this Act. However, such a response from the affected provisions

cannot be inferred.



287. As follows from their contents, from the date of entry into force of the Act on the

health services to all providers of health services

covered by the same legislation, regardless of whether their activities

exercise on the basis of the existing registration, or a new permission.

The law allowed the current operators of non-medical

the device after a period of time to operate in the mode of the New Testament, without this

change require on the part of those entities to meet some of the specific

terms and conditions. With the filing of the application pursuant to § 121 paragraph. 5 of the law on health

services but is not linked to any obligation to prove the new qualification

or any other presumptions which, as regards the conditions for obtaining

permission to allow for the delivery of health services, from this

terms to distinguish between providers on the basis of registration referred to in

existing regulations, who may not meet these conditions, on a provisional basis, and

providers with permission under the new law, which fully apply

the new legislation. The request requires basically just putting

the data, which had to be provided in the application for registration under section 10

the law on health care in non-State health establishments, and which

competent administrative authorities. Not here, nor the reasons which

on the contrary, they legitimize request permission for persons that are entitled to

operate health care facilities of the State, as they have been set up by the State,

the county or municipalities according to the specific legislation and similar

registration obligations were subject. On the basis of the new legislation on

them because there is a unification of the conditions for the exercise of the activities of the terms

existing operators of non-State health establishments, of which

However, no significant change.



288. The purpose of the requirement of the new permission stated in its observations

Neither the Minister of health, nor the Constitutional Court addressed professional Chamber.

The Minister pointed out only that range of data is necessary for the

a seamless transition of the existing registrations to the granting of permissions

health services, the question of the purpose of the transition itself, however.

On the contrary, each of the Chamber highlighted the futility of this same

the request, eg. also unclear interpretation of the contested provisions with respect

about the scope of the required data, and the related administrative burdens.

The answer to the question of the purpose of eventually not make nor the explanatory memorandum to the Government

the draft law, as its original version, the existing

operators of non-State health establishments will be able to provide

health services on the basis of your registration without a time limit. To

change to the amendment of the Committee on health, which

was not justified.



289. in the case of the contested provision, the Constitutional Court could not

identify any purpose for which could lead to condition

the next delivery of health services, with the requirement of the new permissions

which is not linked to proof of any new facts. The prohibition of arbitrariness,

which follows from the principle of the rule of law in accordance with article. 1 (1). 1 of the Constitution,

in doing so, does not allow a legislator the obligation or restriction

certain basic rights, whose fulfilment has no objectively

appreciable purpose that would constitutionally aproboval intervention. Connect to

In addition, the legislature would be in breach of this requirement a sanction was

would be appropriate depending on the content to reflect on its šikanózním

character. In the case of the contested provisions, the Constitutional Court is aware,

that requirement in question does not present a significant or new permissions

even unbearable burden. The legislature to obtain this permission

set a simplified conditions and for the submission of the application created a sufficient

the time frame. These facts, however, are significant for the assessment of

the intensity of the intervention into the basic law, which can be assessed only in the

relation to the aim pursued. His absence on the contrary justifies the conclusion on

arbitrary nature of the obligations in question, because of the limitation of the rights and

the freedoms of the individual, that is an end in itself, not in a legal State

acceptable.



290. The Constitutional Court therefore came to the conclusion that the obligation to present

operators of non-State health establishments to obtain new permission

to the provision of health services and the associated time limit options

the provision on the basis of registration under the Act on health care

in non-State health establishments is in breach of the prohibition

arbitrariness, which follows from the principle of the rule of law contained in the article. 1 (1).

1 of the Constitution, and at the same time constitutes a violation of the rights of these entities to do business

within the meaning of article. 26 paragraph. 1 of the Charter. The reason for the derogation in question while

on the part of the contested provisions of § 121 paragraph. 1 of the law on the health

services, expressed by the words "and that after a maximum period of 36 months from the date of

the entry into force of this Act, unless the context otherwise requires ", and section 121

paragraph. 5 of the same law, the Constitutional Court decided on their cancellation. In

the remaining part of section 121 paragraph. 1 of the law on health services proposal on the contrary

rejected, the possibility of itself as providing health services on the basis of the

the permission, which was granted under the previous legislation, the contradiction with

the constitutional order shall not constitute. Her determination, at least during a transitional period

on the contrary, it would be particularly desirable in the case, if indeed there was a

change in the conditions for health services providers for access to the

occupation or professional or trade activity, and the legislature, in order to ensure the

their compliance with the established the obligation to obtain a new or change permissions.



291. Although the petitioners and a group of senators in a fight over the repeal only

§ 121 paragraph. 1 and 5 of the Act on the health services, the Constitutional Court has considered

that derogation reason turns out even on the restrictions on the validity of the existing

registrations pursuant to its paragraph 4 first sentence in the words "no later than

the expiry of 36 months from the date of entry into force of this Act ", including

the commas preceding them, and paragraph 4, second sentence. This time limit

content is closely associated with the requirement to obtain a new permission,

builds on the content of the contested provisions and copes with the question

the validity of the existing registration. Cancellation of the contested provisions

Although becomes only partly obsoletním [and, therefore, it is not about the analogue

situation as of 31 March 2004 in the award. October 2001, SP. zn. PL. ÚS 15/01 (N

164/24 SbNU 201; 424/2001 Coll.), part VII/d], maintaining it provided for

the demise of the registration expiry of 36 months from the entry into force of the Act on the

health services and resulting from the requirement to obtain a new

However, not only does not allow the permission to delete the recorded action to

the basic rights of the parties concerned, but the necessity of filing a new application

with all of the requirements contained in section 18 of the Act on health services and

no guarantee of the validity of the registration of the decision during this intervention

significantly deepen. The Constitutional Court recalled that the subject of this proceeding


It is not only the proposal to repeal section 121 paragraph. 1 and 5 of the Act on the health

services, but this law as a whole. It is therefore its provisions

§ 121 paragraph. 4. It is not applicable, that the appellants, or side

the participants made their argument against this provision,

Since the Constitutional Court in its decision is bound by the proposal, not only

and its justification. In that case, therefore, take into account the relevant content

the nexus of all of these provisions, as well as the requirement to exercise restraint when

review of legislation other than the claimant claimed reason

(cf. below points to 326 328 this award), and for the same reason as in the

the case of the contested provisions, came to the conclusion about the non-compliance of the above

those parts of section 121 paragraph. 4 of the law on health services with the constitutional

policy.



IX.



An assessment of the constitutional conformity collection and publication of some of the

information on medical workers



292. A group of senators, in this proceeding, the position of the next

participant, your proposal seeks the annulment of the provisions of section 70 to 78 of the law

of health services, a new way to regulate the National

health information system. The Constitutional Court has already stated on this site,

some of the objections raised are not eligible on merits

assessment. Secondary participants in General, note that the purpose of the

This system is defined very generally, it does not explain, however, that the

This objection to question the purpose of all partial (and relatively

separate) registers, which consists of him, or just some of them. For

the Constitutional Court also considered the vague claim that unlike the original

legislation is not the way in which the newly established database should be

technically created and how they are to be encoded in it, and that the data

There is a range of data to be made anonymous. Even in this

the case of the minor participants do not specify to which part of the national

the medical information system, their objections are directed, and in addition to the

the voucher on certain provisions of the Charter and the Convention on human rights and

Biomedicine do not even any account from which would result from

reason should established fact based contradiction with constitutional

policy. This lack of argumentation is compounded by the fact

that neither the legislation nor the contested Decree No. 116/2012 Coll., on transfers of

data in the national health information system, coffee

technical aspects relating to the establishment of a database or the anonymisation of data

in a way, that, as regards the concept significantly differ from the

the previous legislation.



293. In the proceedings for the control of standards of the petitioner, the claim puts the burden of

which means that the "Rails to the appellant against content-related non-compliance of the law

with the constitutional order, for the purposes of constitutional review is not sufficient only

to cancel the designation of the proposed law. his individual

provisions, but it is necessary on his part and indicate the reason for the alleged

unconstitutionality ". It does not change, that the Constitutional Court is bound by the

only the petitem of this proposal, not even his reasoning [cf. find

of 18 July 2003. August 2004, SP. zn. PL. ÚS 7/03 (N 113/34 165 SbNU; 512/2004

SB.)]. The alleged reason of unconstitutionality must of course be expressed

I'm sure. These requirements with regard to the content of the reasoning applied

meets the proposal only in the part that is directed against the legislation

The national registry of health care workers. Secondary participants

specifically, the scope of the claim contained in the data of the medical

workers, which will be in addition to the newly published the relevant

website. At the same time neshledávají the effectiveness of the duplicate

the collection of personal information on doctors, dentists and

pharmacists. How is the helmet of their proposal, they believe that the

These facts constitute a contradiction in the contested legislation with the law on

protection from unauthorized gathering, publication or other

the abuse of personal data under article. 10, paragraph 1. 3 of the Charter and the right to

protection from zasahováním to private life under article. 10, paragraph 1. 2

Of the Charter.



IX./a



Diction and the context of the provisions examined



294. for the purposes of this procedure, the Constitutional Court shall be considered as sufficient

to quote the text of section 70 paragraph. 1 (a). 2 (a). (c)), section 72, paragraph. 1 (a). (d)) and

paragraph. 2, section 73, paragraph. 1. 2 (a). and), c) and (e)), para. 3, 4 and 5, § 76

and 77 of the law on health services, which have a link with the National

registry of health care workers. These provisions read as follows:



"TITLE III



THE NATIONAL HEALTH INFORMATION SYSTEM



section 70



(1) the national health information system is a unified national

information system of public administration specified



and processing) to the health status of the population, on the activities of

providers and their economy, health care workers and

other professional workers in the health sector in order to obtain

information about the range and quality of provided health services for

health management and health policy



(b)) to the leadership of the national health registries and the processing of data in them

conducted,



(c)) to conduct the national registry of providers and the national registry

health care workers and the processing of data in them led,



(d)) for the implementation and handling of sample surveys on health status

the population of determinantách, of the need for health and consumption of health

service and satisfaction with them and on expenditure on health services,



(e)) for the needs of science and research in the field of health care, and



(f)) to process the data referred to in points (a) and (d))) for the statistical

purposes and to provide data and statistical information in the range specified

This or any other law, including the provision of information for

international institutions.



(2) for the processing of personal data in the national health information

the system referred to in paragraph 1 (b). (b)), and (c)) are to be transmitted without the consent of

body údajů33), if not stated otherwise, the information

they are, if the data subject



...



(c) a health professional) information referred to in section 76, paragraph. 1,



...



section 72



(1) a part of the national health information system are



...



(d)) national register of health care workers,



...



(2) in the national health information system, health registry

create a interconnected system, and for the purposes set out in section 73 is

can the information in them. For the keeping of these medical

registers can be used the data obtained from the public information systems

Administration and health insurance companies.



section 73



(1) the purpose of the medical registers is



and the collection of information for the evaluation) the health status of the population and its

development, to monitor the incidence of socially serious diseases and their

the consequences; at the same time serves as a basis for the evaluation of the effectiveness of the

diagnostic and treatment procedures, and support or orientation of their

development with further possible support facilities health care facilities

instrument technology,



(b)) to monitor the development, causes and consequences, not only for major diseases, and

including the effects of economic, and their impacts in the social sphere and

the economy of the social system,



(c) the registration and monitoring of patients), including the deceased with the selected

socially serious diseases, monitoring the occurrence, development, causes and

the consequences of these diseases and related care, and registration and tracking

patients with injuries, and statistical and scientific data processing register

focused especially on the analysis of the health status of the population and the quality and

the use of health care in order to improve the health of the population,



(d) registration of providers) providers of social services, who

provide health services, and persons providing health services in accordance with

§ 20, staffing provided by health services and

technical and equipment,



(e)) the registration of health workers in terms of their permission to

the exercise of the medical profession and educational attainment,



(f) obtaining the necessary data) for statistical purposes and the provision of

the information.



(2) access to personal data and other data held in health care

the registry has, unless otherwise provided in this Act,



and the worker and the Manager) authorised processors of the medical registry,



...



(c) an authorized employee of the person providing) medical registry

the information, if the register referred to in section 72, paragraph. 1 (a). (c)), and the medical

worker providing medical information to the registry on your person,

If the register referred to in section 72, paragraph. 1 (a). (d)), and to the extent they

of the data provided; This is without prejudice to access to public parts of the

Clinical registries,



...



e) authorized institution which has the worker from the law the right to use

the data specified by the medical registry for its activities (hereinafter referred to as

"authorized officer"); the authorized worker identify and request pursuant to

paragraph 2 shall be submitted to the bodies referred to in points (a) to (e)).) Body

entitled to submit a request in accordance with paragraph 3 shall also mean the medical

the worker referred to in subparagraph (c)), which provides the medical registry

information about your person.



(3) access to personal data and other data held in health care

the registry shall ensure that authorized Ministry worker, on the

the basis of a request submitted by the authorized body in accordance with paragraph

2. the application shall be submitted in a manner enabling remote access. In the application

identifying information must be provided to the body which submitted the request,

and authorized employee, the purpose for which the data are, to which should be in the

the medical registry access, required,

and the extent of the required access rights. The Ministry shall inform the creditor

the subject scope of access rights to personal data and other guided in

the health registry. If the Department of access to

personal information and other data held in the respective medical

the registry does not provide, communicate to the body that made the request, the reasons for that

led him to it.



(4) the Body referred to in paragraph 2 shall, without undue delay, notify the

the Ministry changes the facts on the basis of which was secured

the authorized worker access to personal and other data held in

the health registry. The Ministry according to the severity of the changes to the access


cancels or changes. The Ministry also cancels the access based on the application

the authorized body.



(5) for statistical and scientific purposes, provides a Ministry or

in charge of the legal person from the national health registry data only

disidentified form.



...



National registry of health care workers



§ 76



(1) national register of health care workers eligible for the performance

the medical profession contains structured information on medical

workers, including the visiting persons and persons to

the exercise of the medical profession have gained outside the territory of the Czech Republic,



and, where appropriate,) the name and last names of the health of the worker and

academic, scientific and pedagogical title,



(b)), the date and place of birth,



(c)), gender,



(d) the social security number),



e) citizenship,



(f) the address of the place of habitual residence) on the territory of the Czech Republic or in person,

that is established in another Member State of the European Union, the European

economic area or the Swiss Confederation, the address of the place of residence outside

the territory of the Czech Republic,



g) date and place of professional, dedicated, professional

eligibility and designation of expertise or skills,



(h)), the date and place of professional, dedicated, professional

eligibility and designation of expertise or expertise in the case

health care workers who have obtained qualifications outside the territory of the Czech

of the Republic,



I start), interruption or termination of the medical

the profession,



j) indication whether visiting or established person,



to verify the knowledge) data on the Czech language for health care workers,

who have acquired competence in the study programme in a foreign language

on the territory of the Czech Republic,



l) identification data of the provider or providers or

providers of social services, which is a health professional

employed,



m) region, on the territory of the medical profession,



n) data on loss of permission to exercise the medical profession, about the loss of

medical fitness, a loss of integrity and the length of the period for which it is

the performance of the activities of the disabled.



(2) the content of the national registry of health care workers is



and publicly accessible to) the website of the Ministry of the extent

the data processed in accordance with paragraph 1 with the exception of points (d) and (f))),



(b)) available to a person who has acquired the capacity to exercise medical

the profession,



(c)) that are accessible to other entities referred to in section 77,



(d)) available to authorized employees health insurance, and for the

the purpose of the implementation of the public health insurance.



(3) the Ministry shall provide



a) to the competent authority, on request of the non-public data held in

National registry of health care workers, and only to the extent

necessary for the performance of State administration in the field of health care and investigation

complaints under this Act or other law governing the

the provision of health services,



(b)), the Ministry of Defense on the request of the non-public data held in the registry

health care workers, and only for the purpose of ensuring the defence of the State

According to another zákona36).



§ 77



(1) to a national registry of health care workers transmit data

According to the



section, paragraph 76). 1 (a). and), b), c), (d)), e), (f)), i), l) and (m)) of medical

the worker,



(b)) § 76 paragraph. 1 (a). g) educational facilities, accredited facilities

or responsible for the organisation,



(c) section, paragraph 76). 1 (a). h), (j)) and to the Ministry or official)

the Organization,



(d) section, paragraph 76). 1 (a). I), l), m) and (n)) providers, providers of

social services or the Chamber.



(2) the truthfulness and completeness of the data provided in the register shall be borne by

the responsibility of the entity transferring the data. The body of the data referred to in

Health Registry is obliged to immediately notify administrators of changes

the data provided by him.



(3) the information in the register referred to in paragraph 1 shall be transmitted in electronic

form in the manner prescribed by the implementing regulation. The structure of the

the transmitted data provides the Ministry of health data

standard. "



295. It follows from the provisions cited, the national medical

information system, which by the Ministry of health, is

information system consisting of several health care registers (§ 72

paragraph. 1 of the law on health services). It's all about the so-called. National

Health registry, in which personal data are processed and other data

of the patients, including those about their State of health, and for the purpose of

get information about the health status of the population as a whole,

their (not only statistical) processing and evaluation. Individual

registers, which are defined in the annex to the law on health services,

vary your subject, which is delimited by for example. type of illness or

provided by health services. New legislation in this direction

to the previous legislation, the national health information

the system under section 67c to act on 67i health care of the people, the content of

the page, however, amended and added. These changes concern both the structure of the

These registers and related issues the transmission of data or

access to these data.



296. A part of the national health information system

National registry of providers (section 74 of the Act on health services) and

National registry of health care workers (section 76 of the Act on health

services). The opposition side of the participants relate only to the latter

referred to the registry, in which data are collected about each

health care workers, i.e., persons engaged in the profession of

physician, dentist and pharmacist, or health care profession in

the meaning of section 2 (a). and) of the paramedical professions.

These data are collected from individual health care workers

or other bodies to which the obligation to pass them without the consent of the

the persons concerned arises from section 77 of the Act on health services. New

adjustment as a whole shall be replaced by the present Registry of physicians, dentists and

pharmacists (existing since 1962) according to point 6 of annex to the law

No. 20/1966 Coll., on the health care of the people, in the wording of Act No 156/2004 Coll.

in which they were led by their identifying information (your social security number, title),

further information on their training and specialization, the data needed for

identification of medical devices, to which these persons are working

or a similar ratio (the identification number of the person, the name of the Department) and the data

on their harness. These data are anonymizovaly one year after their

the exercise of the profession.



297. the new registry will also include information already contained in the

existing Registry of health care workers eligible for the performance

the medical profession without mentorship and visiting persons referred to in

section 72 of the law on the paramedical professions, which was not yet

part of the national health information system. Specifically, this

the registry includes the names of persons to whom the certificate has been issued under section 66

the cited law, e.g.. for general nurses, midwives

assistants or dental technicians (cf. § 3 and seq. of Decree No.

55/2011 Coll., on the activities of health care workers and other professional

workers, or § 3 et seq.. already the repealed Decree No. 424/2004 Coll.

laying down the activities of health care workers and other professional

workers), and the visiting persons within the meaning of section 76 of the Act.

This is in short the number under which the certificate has been issued, the name and

last name, date of birth, social security number, address of permanent residence address

employer and job title, or of non-State medical

the device, where the profession is exercised, data on education, the date

the expiry of the certificate or notice, whether or not the information, whether it is a

person established or visiting, and the date of the removal from the registry. In addition to the

data on birth and residence is the register publicly

available. It should be noted that the law on health services not

does not address the continued existence of the registry according to the latter provision,

so the establishment of the national register of health care workers

become a duplicate of.



298. According to section 127, paragraph. 1 (a). and health services Act)

the Ministry will establish a national register of health care workers to 24

months from the date of entry into force of this Act. Natural persons which

perform medical profession on the territory of the Czech Republic, then

produces in accordance with paragraph 5 of this provision the obligation to subscribe to the

This registry to 180 days from the date of its establishment and provide

the Ministry, responsible for the legal person, where appropriate, the information referred to in section 76

the law on health services. Information kept in the register of medical practitioners, dental

physicians and pharmacists will be converted to the new registry. At the time of

the release of this award has not been effectively set up this registry.



299. In conclusion of this part is to be mentioned that in the case of doctors, dental

physicians and pharmacists, and for each of these professions and visiting persons

leading the list of its members, the competent Chamber, which has a mere information

the character, but rather the inclusion in it is associated permissions

the medical profession [cf. the obligation to the membership in accordance with section 3 of the law No.

220/1991 Sb.; to also find from day 14. October 2008, SP. zn. Pl. ÚS

40/06 (N 171/51 SbNU 93; 6/2009 Sb.)]. The scope of the data in this

the list is kept, the law does not provide for itself, and are given concrete form to the

the relevant professional regulations [section 3 (b)) of the Organization of the order

The Czech Medical Chamber, § 2, paragraph 1. 1 (a). I) Organization of the Czech

Dental Chamber and section 4 c of the Organization of the order of Czech pharmacy

the Chamber]. In all cases, the registered name and the last name (and title),

social security number (or date of birth), residence, achieved expertise,

place (i.e. the address of medical equipment) and the form of the profession and

a disciplinary offence. Already in these lists, the law assumes that the

will be publicly available, with the exception of the data on the date of birth, the address for the

delivery on the territory of the Czech Republic and the address for service on the territory of the

Member State of establishment (art. 6a paragraph 9 of Act No. 220/1991 Coll.).

The subject of the registration of the Chambers are, of course, information about

membership in the Chamber or its institutions.



IX./b




Generally to the right to respect for private life and right to information

self-determination



300. The Constitutional Court review the contested provisions of the introduction States that the

in the case are subject to assessment and collection issues

disclosure of personal information, namely, fabric covered in the broader meaning of the

framework of the right to respect for private life. The importance of this right, which is

arbitrary expressed in the article. 7. 1, article. 10, 12 and 13 of the Charter, respectively.

also the article. 8 of the Convention, as one of the main guarantees the autonomy of the individual was

in the existing case law has repeatedly emphasized. Includes both

the traditional definition of privacy in its spatial dimension (protection of dwellings in

the broader sense of the word) and in the context of an autonomous existence and public

the power of the undisturbed formation of social relationships (marriage, family, in the

the company), but also a guarantee of self-determination in the sense of major decision making

the individual about himself, including the question of whether, to what extent, how

the manner and circumstances in which they are to be facts and information from its

personal privacy is made available to other entities [cf. in particular the award of

22 December. March 2011 SP. zn. PL. ÚS 24/10 (N 52/60 SbNU 625; 94/2011

SB.), point 29, whether or not the discovery of 20 December. December 2011 SP. zn. PL. ÚS 24/11

(43/2012 Coll.), paragraph 16].



301. that aspect of the right to respect for private life is in

the case-law referred to as the right to information self-determination and it can be

inferred mainly from the article. 10, paragraph 1. 3 of the Charter [cf. award of 17 December.

July 2007, SP. zn. IV. TC 23/05 (N 111/46 SbNU 41), point 34; the finding of the

on 1 May 2004. December 2008, SP. zn. I-705/06 (N 207/51 SbNU 577), point 27;

find SP. zn. PL. ÚS 24/10, paragraphs 29 and following]. Its essence is

the right of each person to decide what information about yourself

shall provide to the other parties or make public, and its consent is

necessary for their collection or disclosure from the other

persons. However, this right does not apply in absolute and can be limited, even if

the latter provisions explicitly does not foresee such a possibility.

It must, however, be restrictions to protect other constitutional rights

or to achieve the constitutionally aprobovaného public good that must be

provided by law, and that in a way corresponding to the demands arising from the

the principle of the rule of law. Must at the same time having regard to the purpose of the

compete in terms of proportionality (find SP. zn. PL. ÚS 24/10, paragraph 37,

CF.. also for example. the judgment of the European Court of human rights of 6.

June, 2006 in the matter of the complaint and the other Segerstedt-Wiberg against Sweden

No. 62332/00, paragraphs 76 and 88).



302. A similar starting points are explicitly expressed in some other

legislation concerning the issue of the processing of personal

of the data. For example, the Convention on the protection of individuals with regard to automatic

the processing of personal data in its article. 5 formulates policy for the

the automated processing of personal data. You must be obtained), and

treated fairly and in accordance with the law, (b)) collected for

established and legitimate purposes and may not be used in a way

incompatible with those purposes, must be reasonable, c) relating to the

the purposes for which they have been stored on the carrier, and not such a purpose, (d))

accurate and, where necessary, kept up to date, and (e))

kept in a form allowing identification of data subjects for

not longer than is necessary for the purposes for which the data are collected.

In a similar way are these policies defined and in interveners

the above-mentioned directive of the European Parliament and of the Council 95/46/EC, which

This Convention is directly linked (cf. Recital No. 11). The requirement that the

the scope and manner of collection of personal data was proportional in the

relating to the reference to purpose, is highlighted in some of the recitals of this

directive, in particular, Recital No 28.



303. The application of the test of proportionality (paragraph 330 of this award) in the case of

the collection and processing of personal data without the consent of their body

assumes that it will be is each of them separately. In General

the plane must any restriction of the right to information self-determination

According to the article. 10, paragraph 1. 3 of the Charter primarily monitor the legitimate, i.e.. constitutionally

qualified, objective and must be eligible to achieve this objective (requirement

suitability). This purpose must be the law certainly enough expressed.



304. If these conditions Are met, is to be judged this thrift

intervention into the basic law, not only in terms of the necessity of obtaining

specific information for the attainment of the objective pursued, but also his way of

the acquisition and subsequent treatment (a requirement of the need). This

the information may not be used for purposes other than for what it was without the consent of the

his body is obtained (cf. find SP. zn. PL. ÚS 24/10, paragraphs 50 and 51;

find SP. zn. PL. ÚS 24/11, paragraphs 27 to 29), of which, of course, arise

the requirements in relation to its security. Effective protection of the rights

an individual whose personal data are processed, without his consent,

must ensure that, with regard to the degree of sensitivity of the publication may be

This information for the person concerned substantial and irreparable consequences,

that will not be possible to fully compensate the additional in any way. Typically

will go for example. on the issues of the health status or financial circumstances.

The fact that someone has access to these data, must be justified

specific purpose. The law must in any case clearly define circuit

persons who have access to individual data, the extent to which it and

under what conditions. At the same time should determine not only sufficient guarantees,

that will prevent unauthorized access to or misuse of legitimate

Access (eg. the obligation of confidentiality), but in this direction and appropriate

penalties (see in this respect e.g. the findings of the European Court of

human rights in its judgment of 17 May. December 2009 in complaint

Bouchacourt against France no. 5335/6, paragraphs 67 to 69). As one of the

eventually neglect cannot be guaranteed to be maintained only

After the necessary period of time and then it was deleted or been anonymised, so kept

without the possibility of finding his body.



305. the last step of the proportionality test includes the value of the consideration

whether the public interest in the processing of certain personal data outweigh the

above the law of the individual to decide whether this information will provide other

person, or not (the proportionality in the narrower sense). In this step,

It will be necessary to consider in particular the importance of the data with regard to the

the effects of his communication to another person for the private sphere of the individual

(the data subject), so that it is not about information so sensitive that his

the provision for the purpose cannot reasonably be required.



306. Finally, the following criteria must be considered especially strictly in

the case is also the publication of the data processed. Just in

the case of unrestricted public access to specific data must be taken

account of the fact that it occurs to his full exemption from the private sphere

of the individual.



IX./c



Your own review of the contested provisions



307. From the section 70 and 73 of the law on health services, shows that the National

Register of health workers, aims primarily to register

staffing health services [§ 73 para 1

(a). (d)) of the Act] and the registration of health workers, in terms of

their permission to exercise the medical profession and educational attainment

[to section 73, paragraph 1 (b), (e)) of the Act]. The Constitutional Court emphasises that

the mere registration of data on health care workers that occurs

on the basis of the Act without their consent, constitutes interference in their

the fundamental right to information self-determination, and therefore cannot be accepted,

that was the purpose in itself. Must always follow a particular

constitutionally qualified purpose. The one in this case is expressed in section 70 paragraph. 1

(a). and of health services) of the Act, which defines a broader purpose

The national health information system as a whole, and it's getting

Summary of data about the extent and quality of health services,

for the management of health care and health policy. In addition, to be

register the source of statistical information [section 73, paragraph 1 (b), (f))

the law].



308. The question of the purpose of the national register of health care workers

detail and the explanatory memorandum to the draft law on health

Services (print no 405/0, 6. the electoral period, pp. 132-133). The

the main objectives of section 76 and 77 of this Act refers to the provision of data

the public about the performance of the medical permission to the profession and qualifications

health care workers, obtain information on the number and composition of the

health workers in terms of demographic characteristics

(age, gender) and the professional qualification criteria (achieved

eligibility) in relation to the activity carried out (provider, scope),

data for international statistics on personnel capacities and finally

information and documents for planning, decision-making and prediction of the number of

workers in relation to the population, taking into negraduálního and

postgraduate education and specialisation courses. The purpose of this

the registry has also create a unification of several existing

separate records, which are not substantively linked, as they

the monitored data partially overlap.



309. The explanatory memorandum explains the basic purpose of the processing of personal

the data in the registry, which is to obtain information about the personal

ensure the provision of health services for the management of health and

the formation of health policy. It is actually about the same purpose, what they watch

the present Registry of physicians, dentists and pharmacists and the registry

health care workers eligible for the exercise of the medical profession

without the mentorship and visiting persons, that the new register is replaced.

This applies in the case of both of them, even when it comes to the law expressly

formulated a statistical or scientific purposes. The last purpose, that is, even if

implicitly, expressed in the above-cited provisions of the infected, is

ensuring public access to collected data on this

health-care workers. The Constitutional Court could proceed to the

assessment of the legal regulation of the national registry of health care workers from


whether its purposes can be considered to justify

intervention into the basic right to information self-determination according to the article. 10, paragraph 1. 3

Of the Charter, and if so, whether to achieve them laid down the obligation to pass

personal data, or to tolerate their processing and publication, from

the point of view of proportionality. About the fact that this obligation has a legal basis,

There are no doubts.



310. The first stated purpose, which is to obtain data on personnel

the security of provision of health care for the management of health and

the formation of health policy, a constitutionally qualified undoubtedly mark

can be. Create a registry containing information about health

workers, and specifically their identification and contact information [section

paragraph 76. 1 (a). and), b) and (d)) of the law on basic health services]

data on the structure of the [section 76, paragraph 1, point (b) (c)), (e)), in essence

whether or not (a). (j)) of the law on health services], their qualifications [section 76

paragraph. 1 (a). g), (h)) and to the Act on health services)] (i) data

associated with the exercise of the medical profession [section 76, paragraph 1, point (b) (i)), j),

l), m) and (n)), the law on health services], is also

the means to achieve the objective are eligible. The data in question

enable the competent national authorities to assess to what extent is the

national and regional level, ensured the provision of health care

(respectively. health services) in terms of the number and qualifications of

health care workers, record and evaluate the relevant

the changes, including the various aspects of the migration of health workers, and

adopt the necessary measures that they deem effective to ensure that their

any deficiency in the short or long period of time

do not endanger the availability of health care for the citizens. In the broader context of the

by contributing to the protection of the constitutional values of life, health and human

dignity.



311. Some doubts can have only in the case of information on the validation of knowledge

Czech language for health care workers, who have received training

competence in the study programme in a foreign language on the territory of the Czech

Republic [section 76, paragraph 1, point (b) of the law on health services)], as

in his case, it is not at all obvious from the law or the reason for its inclusion

in this register or relationship to achieve the purpose. As to the

specific information about one of the qualifications which the law

required for graduates of accredited healthcare degree programs

carried out by the universities in the Czech Republic in another teaching

language than Czech, if they want to exercise their profession on its territory

(cf. section 35 of Act No. 95/2004 Coll. and section 86 of the Act on non-medical

Health occupations). For these persons, the Ministry of health has

on the basis of their application set out in the official way to verify that they are

able to professionally Express, whose knowledge of the Czech language for the

this purpose requires the extent necessary for the performance of the health care

the profession. The same requirement but also applies to persons who apply for recognition

eligibility for the performance of the medical profession, obtained in another Member

State. It is therefore appropriate to the question, why is this information required

only for one group of health care workers, and not for all,

covered by this requirement. On the other hand, cannot be overlooked, that the

This is basically just a finding of compliance with the conditions

for certain persons required for the formation of a permission to the performance

the medical profession. Already from the very fact that the medical

the worker referred to in section 76, paragraph. 1 (a). the health services Act)

has been included in the registry in question, it is clear that for him it must have been

occur to verify this knowledge. Putting this information in the

the registry is a way to be evaluated, even as regards the suitability of the request,

in conjunction with other data on education, health care

workers, which implicitly include. In no way is it

does not increase the intensity of the restriction (or to) their basic rights

on informational self-determination.



312. In the next step of the proportionality test, judged by the Constitutional Court, whether

the contested edit stands in terms of the requirement of necessity. A substantial

part of the information in the registry is registered already in the context of the

the emergence of health workers and the duration of privileges to performance

the activities in question, when in the case of physicians, dentists and pharmacists

These data have the relevant professional Chamber, which is kept in the

lists of their members. This duplication, however, is not for the assessment of the need for

the decisive. The new registry is to serve the evaluation of human resources

ensure the provision of health services for the purposes of the proceedings

health care, that is, undoubtedly, the purpose of the odlišujícímu is that

justifies keeping the individual Chambers. At the same time is maintained by the

another body, and as a whole covers a much wider range of data on the

a larger number of entities. Its very establishment, therefore, cannot be considered as

unreasonable or even arbitrary and request the need is in his

the case should be considered to the extent of the data processed from the point of view and

the method of dealing with them, and it's in relation to its purpose.



313. The above (section 310 of this award) was defined by the binding of each

information on the objectives pursued, which also represents the basis for the evaluation

the necessity of the extent of the data processed. The Constitutional Court is of the opinion

in the case of identification data, data on the health of workers

their structure (sex, age, nationality) and qualifications (education,

specialization) and performance of the medical profession (performance space, start,

interruption and their performance) is the reason for which they are required, just

These data, obviously. In all these areas, it is essentially about the fundamental

data, without which it would not be possible to obtain information, which are the target of

their processing. The retention of data for the performance of

profession allows control of the data processed, if these

provided by the bodies, as well as monitoring their changes,

including their time aspect. In the case of information on the validation of knowledge

the Czech language can be reiterated that, having regard to their nature

make way for the achievement of the objectives of the less friendly to the basic law

on informational self-determination.



314. The remaining data is associated with the exercise of the medical profession. While on the

information about whether visiting or established person,

the provider, which is a health care worker is employed, and the edge of the

without further apply the above evaluation, in the event of data loss

permission for the performance of the medical profession, about the loss of health

competence, integrity and length of period of loss, which is the power

prohibited activities, it is desirable to give more detailed reasons. All the concepts

referred to in section 76, paragraph. 1 (a). n) of the Act on health services is to be

interpreted from that point of view, whether they have a relevance in relation to the existence of

permission to exercise the medical profession or not. The loss of the

health competence or integrity of the healthcare professional in the

the meaning of section 3 of Act No. 95/2004 Coll. or section 3 of the Act on non-medical

Health occupations means without further that their profession may not

continue to perform, and has the same effect and the loss of privileges to the performance

the medical profession (e.g., exclusion Chamber) or the imposition of a ban

activity. The registry in question but does not serve to collect specific

data on health status of health care workers, or about what

a specific meeting or fulfilling the characters of the crime

a disciplinary offence committed. These data are no longer necessary

to obtain information about whether the health professional shall exercise its

the profession. Therefore, for the purpose of this registry is sufficient information about

such an event occurred and her legal qualifications. From

for this reason, the scope of the data is also conducted under section 76, paragraph. 1 (a). n)

the law on health services necessary interpreted restrictively, and that in the

the above sense.



315. As regards access to the processed data of fundamental importance has

particular, section 76, paragraph. 2 (a). and of health services) of the Act, in accordance with

which is the present register is publicly available on the website

The Ministry of health in the scope of the data processed in accordance with

of paragraph 1. The exceptions are the only data on birth and residence.

The first question that arises in this context, is heading for the purpose

This publication, and whether it can be justified as follows an intensive intervention

the right to information self-determination.



316. The contested legislation undoubtedly monitors intended to enable

access to data on medical workers to the public, the publication of the

personal data without the consent of their body, however, cannot be the purpose itself

on its own, but only a means to achieve another purpose, which must be

in the law, either explicitly defined, or it must be at least possible to

clearly inferred. In this case, the specific purpose of the legislation

explicitly does not define. A legitimate reason, however, can be traced to the publication

in relation to information relating to the performance of the profession itself, and it

Similarly, as in the case of lists of Chambers (cf. section 299 of the

the award). Mandatory disclosure of information about a person (and

It also meets the requirements for the medical profession, which) has this

the performance qualification, as the specialisation and where they operate, allows you to

anyone verify whether he provides services to a person who meets the

all of the conditions set by the law. Officers of these

the profession must be aware that, although the performance of their activities

It serves the protection of the life and health of the patient, are also associated with him and

significant risks (incorrect implementation of a typical procedure) and, therefore,

the ability to verify their qualifications should be seen as legitimate

means of protecting patients (or guarantee that they will be granted

health care on the appropriate level of expertise. also the point of 282

the award) and as the restrictions related to the performance of a profession within the meaning of article. 26

paragraph. 2 of the Charter.



317. Conclusions undoubtedly justify the publication of the important parts of the

the data referred to in section 76, paragraph. 1 of the law on health services, but cannot be


applicable to all of them. In the case of dates and places of birth or

citizenship, as well as the nezveřejňovaného social security number or

the place of habitual residence, personal data, which cannot be inferred

no reason for which should be in the case of all those workers

accessible to the public. This also applies for the registration of data on loss of permission to

the exercise of the medical profession, about the loss of health, loss of

integrity and the length of the period for which it is the performance of the activities of the disabled. If it is to

to be able to verify the information's disclosure, whether medical

the worker actually meets all the statutory conditions for the exercise of its

profession, then it is informative enough already, the fact that it is in this

the registry is maintained. If the meet stopped, or ceased to carry

activity, then there is no reason the information made available. These facts

It is, therefore, no additional instantiations, without any information

relating to loss of integrity or health.

Public access to data on medical workers under section 76, paragraph.

2 (a). and of health services) of the Act, if the information under his

paragraph 1 (b). (b)), (e)) and n) of the Act on the health services, therefore,

not stand in the second step of the proportionality test.



318. The Constitutional Court does not exclude, that public access to the relevant data

You may also have another legitimate purpose, that could justify the greater part of the

These data, or even all of them, however, it does not define the law and

It cannot be unambiguously inferred nor implied. It will eventually also applies to

the period for which the data should be published and which is not defined

sure enough. Although the above argument shows that

public access to the data referred to in section 76, paragraph. 1 (a). n) of the Act of

health services does not hold water in the second step of the test of proportionality,

It cannot be excluded that the legislature with him. It stipulated that

the data will be accessible to the public and about the loss of privileges to the performance

the medical profession or the prohibition of the activity, or of their

the exercise of the medical profession [section 76, paragraph 1, point (b) (i)) of the law on

health services], from which it is clear his intent to do so

even after this the worker quit their profession to pursue. The question, however,

sounds, how long has this approach to take, or what is the criterion by

which would make it possible to assess the adequacy of information on

the medical profession of a person publicly accessible after the expiry of the

the longer period without the consent of its bodies, or even against their

the will. If the purpose, as was argued, only implicitly in allowing

the public verify the qualifications and privileges of medical worker

that their profession is currently exercised, then for subsequent (long term)

the publication of these data, there is no reason. Even in this direction would be so different

the purpose of substantiating the longer the period of publication, he had to provide for

the law. Finally, for the same reasons you can have doubts about

After what period of time actually to be stored in this registry data in the

neanonymizované form. The legislation does not give any answer to the question,

whether and when to their erasure or anonymization, while taking into account

the lack of definition of the purpose, it does not provide a satisfactory manner or

section 20 (2). 1 of the law on the protection of personal data.



319. the fact that the scope of publicly available data does not hold water in the

the second step of the proportionality test, it is important for constitutional law

Guest access by other operators. Problematic, of course, is not

the provisions of section 76, paragraph. 2 (a). (b)) in conjunction with section 73, paragraph. 2 (a). (c))

Health Services Act, which guarantees health care professionals

access to this register in a range of information to them, which

are the body. In the case of other qualified entities within the meaning of section 76

paragraph. 2 in particular, in conjunction with section 77, paragraph. 1 of the law on health services

already, however, is not sufficiently regulated the question, for what purposes, and in what

the scope of these bodies to have access to the personal data processed in the

This registry. This is partly due to the fact that the legal

the adjustment in the principle of public access on the registry.

Even in this case, however, was not an obvious reason for that

for example, the educational facilities or providers of health services

they could have access to the native numbers or addresses of the place of habitual residence

all health care workers. Whether it will be, depends on the

the decision of the Ministry of health, which, according to section 73, paragraph. 3 of the law

of health services provides individual workers authorized

subject access to the registry and determines its scope and purpose, any

his decision, however, will be in the absence of a legal definition of the purpose of this

access nepřezkoumatelné and will constitute intervention in the right to

Informational self-determination. Because the condition of legal definition of purpose is not

in the case of most of the qualified entities referred to in section 76, paragraph. 2 (a). (c))

conjunction with section 77, paragraph. 1 of the law on the health services can be met even in

this case to conclude that the contested adjustment did not honor the request

neediness.



320. For all these reasons, the Constitutional Court came to the conclusion that the challenged

the legislation provides for the National Registry of health care workers

public access to your personal data being processed in extent and after

such a period, which cannot be justified by any constitutionally aprobovaným to,

and just as you cannot infer such a purpose even in relation to permission

some of the bodies to which the Ministry of health has

to define the scope of the access rights of their workers. These findings have

influence on the assessment of whether the challenged legislation stands as a constraint

their fundamental right to information self-determination according to the article. 10, paragraph 1. 3

The instrument in the test of proportionality, and to justify the conclusion that the

in this regard the need to clearly fail the test of section 76, paragraph. 2

(a). and (c))) and the law on health services. At the same time it should be

emphasize that the repeal of these provisions would have a major impact on the legal

modify this registry as a whole, because there would be a substantial

limitation of the possibilities of its use, without it being possible to accurately assess whether the

still corresponds to the purpose for which it was created. This fact, together with the

uncertainty regarding the retention period of the data processed, so

justifies the conclusion that the legislation contained in section 76 and 77 of the law of

health services does not hold water in the second step of the proportionality test

as a whole, therefore is in breach of article. 10, paragraph 1. 3 of the Charter.



321. In conclusion of this part of the Constitutional Court notes that in this proceeding,

nepřezkoumával the constitutionality of legislation of the national health

information system as a whole, but rather dealt with only some

aspects of the provisions, which apply to the national registry

health care workers. This finding therefore beyond the scope of this review

section 70 shall not give rise to up to 78 of the law on health services obstacle things

decided, and therefore nothing to prevent, to the side, the participants (or any

another legitimate applicant) against these provisions have submitted a new proposal

in which specify the reasons for which the applicants seek their repeal.

The Constitutional Court is aware that the collection and processing of personal

data on the health status of patients without their consent represents a very

intensive intervention in their fundamental rights and that, in this respect, it should be

on the legal adjustment of the pose particularly stringent requirements, especially if

as to the determination of the purposes for which such data are to be collected and

processed, the scope of these data on the class of persons to have access to

These data access, and the purpose of the approach, period, after which they are to be

processed, and security, that there is no unauthorized access or

their abuse, including measures for the follow-up to the management of these

the data. In this sense, such adjustment must stand in relation to the

all personal data which are undergoing processing. It is therefore desirable

to the legislature when adopting the new legislation the national registry

medical workers carefully consider to what extent from these

aspects of the impact even the other registers forming the National medical

information system, and its timely intervention has removed any

the flaws, which could lead to violations of the rights of patients,

health care workers or other persons to information self-determination.



X.



The constitutional definition of conformity assessment of factual matters raised some

offences or other administrative offences in the Act on health services

and the amount of the penalties for them



322. the proposal of the Group of Senators continue pointing against the provision of section, paragraph 114.

1 (a). (g)) and section 117, paragraph. 1 (a). (e)), f), (g)), n), and r). 3 (b).

d), (e)), f), (g)), h), (i)) and m) of the Act on health services, which define the

the merits of certain offences or other administrative offences in the

the provision of health services. Secondary participants,

that the upper limit of the fines, that the law provides for committing listed

offences, with a view to their seriousness set in a disproportionate

the amount of and, therefore, does not hold water in terms of the article. 4 (4). 1 and 4, of the Charter. This

the inadequacy is in the case of some of these offences

due to the ambiguities, and vágností or even rozporností

their factual matters, that health care professionals does not allow

clearly assess whether their procedure is or is not in accordance with the

by the law.



X/a



Diction and the context of the affected provisions



323. The contested provisions setting out the facts of administrative offences

in the provision of health services:



"section 114



(1) a natural person has committed the offence by



...



(g)) as a medical worker in breach of section 70 paragraph. 4 (b). (e))

5 does not pass the data to the national health information system,



...



section 117



(1) the provider commits misconduct by



...



e) fail to comply with the notification requirements of § 21. 1 and 2 or § 27.

1 (a). (c)),



(f) fails to comply with the notification obligation or) shall not disclose the information in accordance with § 26

paragraph. 2 or 4,



(g)) in contravention of section 26, paragraph. 3 does not ensure transmission of copies of medical

documentation or other documentation from the medical statement

service providers,




...



n) contrary to section 28, paragraph. 1 provide patient health services without

his consent,



...



r) neopatří medical devices designation under section 45, paragraph. 2 (a).

(d)),



...



(3) the supplier commits misconduct also by



...



(d) the breach of an obligation of confidentiality), pursuant to section 51,



e) breach of an obligation to lead or keep health documentation or

dispose of the medical documentation referred to in section 53, paragraph. 1,



(f)) does not allow access to the medical documentation according to § 64 paragraph. 1,



(g)) will not allow the inspection of medical documentation according to § 65,



h) allows access to medical records in violation of § 65,



I) or a copy of the Pact's listing of medical documentation under section 66 paragraph.

1 or 2,



...



m) does not make the inspection body pursuant to section 84, paragraph. 2 (a). and (c)))

or (d)) ".



324. Beyond the Constitutional Court adds that the challenged provisions of the

define only the merits of the individual administrative offences. For

However, you can commit them to impose a fine, the maximum amount is

laid down in the case of an offence under section 114, paragraph. 1 (a). (g)) of the law on

health services in its paragraph 2 (b). (d)) to 100 000 CZK

the case of administrative offences under section 117, paragraph. 1 (a). (e)), f) and (g)).

3 (b). m) of the Act on the health services at the paragraph 4 (b). (c)) on the

300 000 CZK in the case of administrative offences under section 117, paragraph. 1 (a). n) and

paragraph. 3 (b). (e)), f), (g)), h) and (i)), the law on health services in its

paragraph 4 (b). (b)) to the 500 000 CZK in the case of misconduct under section

paragraph 117. 1 (a). r) of the Act on the health services in its paragraph 4

(a). (d)) on 200 000 Czk in the case of misconduct under section 117, paragraph.

3 (b). (d)) of the law on health services in its paragraph 4 (b). and) on

1 0000 0000 Czk. None of them, on the contrary, the law does not bottom border

the fine.



X.



Objection excessive amount of fines



325. The underlying objection relates to the adequacy of the side of the participants of the above

the fines that can be imposed for such administrative offences. Such claim, however,

its content is not directed against the contested provisions, but rather to

the relevant portions of section, paragraph 114. 2 (a). (d)) and section 117, paragraph. 4 (b). and (b)))

(c)), and (d)), the law on health services, which define the relevant penalties.

You can, of course, recognize that the abolition of the legal definition of the constituent elements of

the administrative tort would be the remainder of the penalty provisions has become obsoletní, which

would be effectively removed the possibility of violation of basic rights in the

as a result of their application. But the question remains whether such a procedure

was compatible with the purpose of the powers of the Constitutional Court to decide on the

repeal of laws or other laws, if they are in conflict with the

the constitutional order, as well as the principle of minimizing interventions by the Constitutional

the Court applied in its decision making activities [cf. find dated 6 October

2010 SP. zn. PL. ÚS 38/08 (N 207/59 SbNU 3; 294/2010 Sb.), item 60].

If indeed such a contradiction involved only the amount of the penalties, it is clear

that would be sufficient to remove the cancellation of the relevant provisions of the

the law, which this penalty for the administrative offence in question lays down. The current

the cancellation of the merits of administrative tort would be excess and

think about it, it would be only possible provided that it

lies the reason of unconstitutionality.



326. These facts justify a conclusion that the objections pointing towards the top of the

border fines are not with regard to the Group of Senators allotted course

management of relevant. Indeed, the provisions of the Act are directed on the health

the services that their proposal is not attacked. The Constitutional Court, however,

had to deal with a specific situation, which arose as a result of

the rejection of the proposal by-participants due to obstacles and lis pendens

his subsequent material discussing in this procedure, the subject is

Another proposal of the petitioner on the abolition of the law on health services as a

the whole. This means that, although minor parties did not design the cancellation

the relevant provision, which lays down penalties for administrative offences, the constitutional

the Court in the present proceedings decides about their cancellation. If it appears from

its settled case-law that, when making its decision is bound only

petitem design, and not its reasoning [cf. e.g. find of the day

November 23, 1999, SP. zn. PL. ÚS 28/98 (N 161/16 SbNU 185; 2/2000

SB.)], naturally, the question whether in these circumstances could or

He even had to revise the relevant provisions laying down penalties from

in terms of reasoning side participants.



327. The Constitutional Court on this issue generally occupies a restrained approach. (I)

If it is not bound by the grounds for annulment of the Act or other

legislation, and, therefore, the contested provisions may examine and also from

other than the claimant raised reasons, the procedure cannot be

manifestation of arbitrariness. Any other custom review must have

these reasons a content link, or, if a case of so-called.

specific control of constitutionality must be maintained his connection to the case, in

connection with which such proceedings initiated. On the contrary, this option

cannot serve to ensure that the Constitutional Court took advantage of a specific proposal, and without

any connection with the applied argument in the abstract plane

set out its own line of argumentation on the basis of review

and, where appropriate, annul the legislation or its part. This is true

especially in the case where a legal provision only for infected

the way of its adoption, without at the same time namítán his factual discrepancy,

and when finding about whether the regulation was adopted in the manner provided

constitutional order, is not eligible to establish a barrier to matter against

any content-related review of the contested provisions at a later date [cf..

find of the day 15. may 2012 SP. zn. PL. ÚS 23/09 (245/2012 Coll.), points

34-36].



328. In the matter of the repeal of the provisions which lay down penalties for administrative

delinquencies, the fight over only promoters and the band members, which in this

control the position of the intervention, in both cases it but

It was because of the way the adoption of the law on health services, or from the

for reasons relating to this act as a whole. The factual argument

against these provisions applied only to a group of senators, which is, however,

on the contrary, did not include in the small print of your proposal. The Constitutional Court nevertheless just in

This proposal finds a sufficient factual basis for their review. From

its content is obvious, that the minor participants in the fight over

just the upper limit of assessment of the adequacy of the sanctions. In a situation where they are

the provisions in question subject to the same control, albeit to another proposal actively

legitimovaného body, therefore nothing to prevent the Constitutional Court

the rules to their argument.



329. After the Constitutional Court proceeded to review the relevant portions of section

paragraph 114. 2 (a). (d)) and section 117, paragraph. 4 (b). and), b), c) and (d)), the law on the

health services, governing the penalties, came to the conclusion,

the adequacy of the level of sanctions applied by the objection does not justify their

the cancellation. As is clear from settled case-law of the Constitutional Court, financial

sanctions that have the nature of a public financial obligations of the State

Although interference to the securities of the substrate, and therefore ownership

a statutory body, itself, however, does not constitute a violation of this

the law, which is constitutionally guaranteed in article. 11 of the Charter, or article. 1 Additional

Protocol to the Convention (find SP. zn. PL. ÚS 7/03). The assessment of whether this

sanctions as a permissible action stands generally depends on the fulfilment of certain

terms and conditions. Above all, it must be such a sanction, and even in the case of

the administrative tort, laid down by law, which is fulfilled in the case (cf..

find SP. zn. PL. ÚS 14/09, paragraph 29). The legislation but must

also compete in terms of the proportionality test, which, however, in

this case applies in its full form. The reason for this procedure

Meanwhile, stems from the nature of the penalties.



330. The Constitutional Court, in assessing the admissibility of the intervention to a specific

by default, the basic law assesses whether the measure tracks

legitimate (constitutionally qualified) the objective of the restriction, and if so, whether the

These measures to achieve this objective, suitable (suitability requirement),

further, if this goal cannot be achieved by other means, which would be to

the basic law more friendly (the requirement of necessity), and

in the end, whether-if these conditions are met-the interest in achieving

This objective within the framework of a legal relationship outweigh the concerned

the Basic Law (the proportionality in the narrower sense).



331. The application of this test in the case of restrictions of ownership rights

the granting of financial sanctions, in particular the maximum amount will usually lead to

the conclusion that such sanctions monitors the legitimate aim of preventing violations

concerned a legal obligation. At the same time it's about a resource that is capable of

to achieve this objective. Answering questions the need for the top border

sanctions, in particular the amount of, or the related issues of the intensity of the public

the interest in such settings, but cannot perform the judicial interpretation.

It is a question of a political nature whose solution is the exclusive

the competence of the legislature, which ultimately belongs to the legislative

the questions of whether a meeting is to be a criminal or not, define

factual elements of offences (crimes, misdemeanors, other administrative

offences) and the determination of the type and level of sanctions. He can, within the

his discretion take into account individual criminally-political point of view, for example.

the General aspect of prevention, risk behaviour and the intensity of the tort of

the resulting degree of threat to the orderly human coexistence or transformation

in view of the public on the importance of axiologickém individual and

social values and legal goods poškozovaných deliktním behavior

Offenders (find SP. zn. PL. ÚS 14/09, paragraphs 29, 34 and 36).



332. the result of these considerations, which includes determining the type and amount of

the penalties for committing a tort, may the Constitutional Court further

review in the limits of their competence, however, the space for any

his intervention is very narrow. In principle, so it can consider whether the

financial penalty stands in terms of extreme exclusion test

disproporcionality, namely whether the penalties associated with this intervention into the constitutionally


the guarantee of ownership does not lead to such a fundamental change in equity

the ratios of the body, which for him meant "the destruction of the same

the nature of the assets ", IE. "destruction of property" (find SP. zn. PL.

TC 3/02), or whether this is not the case, in which "the boundaries of public

the mandatory financial individual to the State acquired restrictor

(rdousícího) ' (find SP. zn. PL. ÚS 7/03). For its review of the

but can be accessed from the viewpoint of compliance with the constitutional principle of equality,

both akcesorické in the meaning of article. 3 (3). 1 of the Charter, which prohibits

discriminate against persons in the exercise of their fundamental rights, and

neakcesorické, enshrined in article. 1 of the Charter and of the exclusion

the arbitrariness of the legislature in the differentiation of the rights of certain groups of entities

[cf. find SP. zn. PL. ÚS 36/01, find SP. zn. PL. ÚS 7/03, find from

21 June. April 2009, SP. zn. PL. ÚS 29/08 (N 89/53 SbNU 125; 181/2009

SB.), point 56]. If they are retained as follows defined the limits of the discretion

the final word in relation to the effectiveness of monetary penalties in a certain amount of

reserved for lawmakers.



333. The above summarized background relevant to the evaluation of the argument

the side of the participants, which lies in the inadequacy of the opposition top

the boundaries of the fines having regard to the seriousness of the offences, as well as

the uncertainty of their definition. As regards the first aspect, is the

clear that the objection is mainly applied to the expression of disagreement with the

the way in which the legislature used his privileges in determining possible

the amount of the penalties in the law on health services. Secondary participants

actually seek their rethinking, because individual administrative

delinquencies are not regarded as sufficiently serious to justify the determination of

the penalties in the alleged amount. For such a review, but the Constitutional Court called

It is not. The proportionality of the contested financial sanctions within the meaning applied

objections can control within the abstract review only in terms of

their possible winding-up, or "rdousícího" effect, and even in the

this case is not limited to considerations about the adequacy of their

the upper limit. Even if the imposition of fines on this level, in the

the case of the contested penalties is 100 000 to 1 0000 0000 Czk, should such a

character in relation to certain group of competent bodies responsible,

the administrative authority when deciding on the amount of the penalty in each

individual case into account, in addition to the possibility of the seriousness of the

tort and the circumstances of the criminal offence and the property consequences of the responsible

the body.



334. the obligation to consider the consequences in relation to the property substantially

the responsible body follows directly from the constitutional order, because

any imposition of sanctions is always interference to its title

rights under article. 11 of the Charter, and must therefore, in each individual case

compete in terms of the above constitutional criteria for the review of the above

sanctions. While such penalties imposed on providers of health

services for breach of obligations relating to the performance of this business

activities, must be taken into account, and that its imposition of de facto

the service provider to continue its activities. Other

words, it must be examined whether this fine does not interfere with the

the essence and meaning of rights to do business according to article. 26 paragraph. 1 of the Charter, respectively.

whether in relation to this law does not have the effect of winding-up, that is not the purpose of

This sanction. For these reasons, cannot be the fact that § 118 paragraph. 2 of the Act

of health services does not mention the possible effects of sanctions in relation to the

the essence of the responsible entity's assets, interpret it in a way that

to them, the administrative authority may not take into account or even. On this

the conclusion does not change or comparison with section 12 of Act No. 200/1990 Coll., on

Offences Act, as amended by Act No. 67/1993 Coll., which applies in the case of

offence under section 114, paragraph. 1 (a). (g)) of the law on health services,

or with other provisions of special laws that define the limits of the

administrative discretion for the imposition of fines, natural or legal persons, and

the obligation to take into account the whole of the circumstances of the responsible body on the contrary

expressly provided for. The very absence of this point of view in some legal

editing, which is mainly the result of persistent negative

fragmentation and nekoncepčnosti the administrative punishment law,

does not justify the conclusion about the intention of the legislator to exclude the obligation of the administrative

authorities to ensure the constitutionally guaranteed rights of the bodies responsible for the use of

administrative discretion. Such an interpretation would not be possible to

be considered constitutionally Conformal and of a situation when you can take into account the

assets of the responsible body should be inferred directly from the listed

articles of the Charter, the interpretation must be preferred over the other.



335. the repeal of the legislation would be appropriate only if the

If the imposition of sanctions was mentioned aspect is excluded, which would

could be a result of the determination of its typically the lower limit in the amount of that

could have a winding-up, or "a strangling" effect, at least for a part of the

bodies responsible [cf. find SP. zn. PL. ÚS 3/02, from 10 June.

March 2004, SP. zn. PL. ÚS 12/03 (N 37/32 SbNU 367; 300/2004 Sb.)

find SP. zn. PL. ÚS 14/09]. In that case, however, on account of a hypothetical,

Since the law on the health services in the affected administrative offences

no lower bound does not provide for sanctions. Possible unconstitutionality

the statutory provisions providing for the upper limit of the fines as a result of

the possibility to impose a fine in the amount of so extremely high that would grant

sanctions at that level was unacceptable in all circumstances, is in the

the case clearly excluded. This conclusion, however, concerns the boundaries

in general terms, and does not mean that the imposition of a fine in the amount of

a specific case could be unconstitutional for example. with regard to the

property of a specific responsible entity and the associated

the intensity of the intervention into its ownership rights and the right to do business.



336. the Zbývá dodat, that objection the unfairness of the upper limit of fines

stand up or in the part in which is based on the alleged uncertainty

factual matters of individual administrative offences. The requirement of certainty

in the case of regulatory offences or administrative offences

It follows directly from the principle of legal certainty, which is one of the characters

democratic State in accordance with article. 1 (1). 1 of the Constitution. Its compliance with the

It is therefore a prerequisite for constitutional conformity of such legal

editing, and regardless of the amount of the penalty, which for committing these

offences. The relationship of proportionality between the certainty of merits and the amount of

the penalties cannot be inferred from the constitutional order.



337. For all these reasons, therefore, the Constitutional Court only

noted that the provisions of the Act under consideration of health services

laying down penalties for some of the administrative offences are not in conflict with article. 11

paragraph. 1 in conjunction with article. 4 (4). 1 and 4, of the Charter. The possibility of any

review the specific application of these provisions of the above

constitutional aspects of the proceedings on constitutional complaints remains

unaffected.



X/c



To the objection of uncertainty and inconsistency in factual matters



338. the adequacy of the level of penalties, while Objections were not such as to justify

conclusion on the unconstitutionality of the contested provisions, which define the factual

the essence of the individual administrative torts, Constitutional Court, however, in relation

to them, i had to deal with a related argument about their

uncertainty, vagueness or inconsistency. Any conclusion that the challenged

provisions lay down a legal obligation, whose content is not appreciable for

their addressees, would inhibit, for such negotiations to be

You can save the responsible body of the sanction, and based their

contradiction with the principles of the rule of law in accordance with article. 1 (1). 1 of the Constitution,

including the requirements of the internal coherence of the legal system and on its

certainty and clarity [cf. find dated 28 February 1996, SP. zn.

PL. ÚS 9/95 (N 16/5 SbNU 107; 108/1996 Coll.), the discovery of 2 July. July

1997, SP. zn. PL. ÚS 2/97 (N 91/8 SbNU 325; 186/1997 Coll.)].



339. As in assessing whether legislation conforms to the constitutional

Okay its certainty through the request cannot be generally deny the

the relevance of the poukazům to be more complex or ambiguous cases, its

application, the very fact that these cases may occur, even

does not justify a conclusion about its unconstitutionality. He came into account

only if the text of the law did not allow to determine its

the normative content or using the usual interpretative methods (

closer in particular find SP. zn. PL. ÚS 2/97, also find SP. zn. Pl. ÚS

83/06, paragraph 186). Such a conclusion, but participants cannot be side and

to reach him, or on the basis of their argument, consisting primarily of

vouchers for a variety of situations, which may occur in the application practice

in their view, would be for the medical worker's difficult

recognize, what corresponds to the negotiations or legal obligations does not match

provided for by the Act on health services, or find enough

the facts, or where compliance with this obligation will not be given

the particular circumstances possible. In the case of all these situations, which are

summarized in the narrative section of this award (part II) (f), allow the challenged

provisions or provisions to which the challenged provisions in the definition

administrative offences refer to (and in relation to which the given that

complete the substance of these offences, apply the requirements

certainty to the same extent), certainly enough to identify the content and purpose of the

they set out legal obligations.



340. The individual examples of the Constitutional Court only briefly mentions that

disagree with the statement about the alleged side participants in the uncertainty section 117

paragraph. 3 (b). (d)), respectively. (a) also. (e)), f), (g)), h) and (i)) in conjunction with § 51

paragraph. 2 (a). (d)) part of a semicolon before the law on the health services.

In accordance with the provisions of the latter are the communication of information or

the other fact, covered by the obligation of professional secrecy under

This Act, for the purpose of criminal proceedings in the manner provided

laws and regulations governing criminal procedure. Thus the provisions with

unambiguous wording, which implies that the communication of these facts


must be in accordance with section 8 (2). 5 of the code of criminal procedure with the consent of the judge.

Other examples that apply to administrative deliktům under section

paragraph 117. 1 (a). (e)), f), (g)) and the n) (a). 3 (b). m) of the

health services, no longer relate to the possible application of the contested

the provisions in certain situations, the alleged legal assessment

However, the Constitutional Court in this type of procedure is not for. Definiteness of section 114

paragraph. 1 (a). (g)) and section 117, paragraph. 1 (a). r) of the Act on health services

interveners questioned was not at all.



341. In conclusion of this part of the Constitutional Court notes that the contested provisions of the

review just in terms of the reasoning applied by the interveners,

While in this range did not find their non-compliance with article. 1 (1). 1

Of the Constitution and article. 4 (4). 4 of the Charter.



XI.



Other arguments against the law on the health service or its individual

the provisions of the



342. The Constitutional Court went to the last assessment of the proposals,

and this proposal a group of MPs, which has in this management position

the next participant, on the abolition of the law on health services as a

the whole, or to certain of its provisions.



343. The essence of each of the objections is not only the alleged non-compliance with the

the provisions of the Constitution and the Charter, but also to the Convention on human rights and

Biomedicine. In the introduction to this part of the award, therefore, considers the Constitutional Court

should be stated that the latter Convention was as international

the Treaty on human rights and fundamental freedoms within the meaning of article. 10

In the original text of the Constitution, to which Parliament gave its assent, and

approved it pursuant to article. paragraph 39. 4 of the Constitution in its original version, the reference

consideration in the management of the control of the standards already in a time when it has become for the Czech

the Republic, i.e. the binding. from 1 January 2006. October 2001. This meaning yet

as a result of deletion hasn't even in this category of international agreements

from the wording of the Constitution, which was performed by the constitutional amendment of Act No.

395/2001 Coll., because the concept of constitutional order within the meaning of article. paragraph 87. 1

(a). and, in the text of the Constitution) this amendment includes also ratified and

renowned international treaties on human rights and fundamental freedoms

[detail to find SP. zn. PL. ÚS 36/01, part VII, also find

of 15 July. April 2003, SP. zn. I. ÚS 752/02 (N 54/30 SbNU 65), from

24 September. June 2003, SP. zn. PL. ÚS 44/02 (N 98/30 SbNU 417; 210/2003

SB.)]. For these reasons, therefore, it was possible to assess the compliance of the contested

Act i of this Convention.



XI./a



The concept of health services



344. In relation to the law on health services supporting participants

argue that the place of the concept of health care, which refer

The Charter and the Constitution, he uses a new concept of health services, thus as

all getting into conflict with the constitutional order. The Constitutional Court but with the

such evaluation.



345. In the first place it should be stressed that the introduction of the concept of health

service as a central concept of the new legislation with regard to the

undoubtedly exceeds the mere change of terminology and can be regarded

as to the element of a particular cultural or value shift in the way,

how the company looks at the issues of the relationship of doctor and patient

responsibility of individuals for their health and the role of the State in ensuring

the availability of health care. The result of the gradual penetration of and

establishing in the minds of people and time, also in the related wider

the social debate on the issues mentioned, which may have the effect, inter alia,

on the content of the series today, existing legal concepts or institutions. The constitutional

However, it is not for the Court to criticize this change in terms of effectiveness or

accuracy. Is entitled to assess its consistency with the only constitutionally guaranteed

the law on the protection of health and the provision of medical care within the meaning of article. 31

Of the Charter, and in this sense can be used to call into question the fundamental basis already

the argumentation of the side of the participants, because health care continues to be

the notion of legal (cf. § 2 (4) and section 5 of the Act on the health

services). There is his replacement, but only under a podřazení content

the broader term health care services. Continue to be so retains its autonomous

the content resulting from the article. 31 of the Charter. Introduction of a new term, moreover, cannot be

to interpret in a way that would restrict the content of the concept of health care, and

Thus the constitutional law remains fully intact.



346. From the design side of the participants could not afford any more reasons to

the basis would be chosen by the legislator of the new terminology should be

unconstitutional. The mere consideration, that the constitutional order does not modify the concept,

undoubtedly lead to such a result cannot, with lawmakers unable to

reproach nor that the introduction of the new concept of he uncertainty

the various provisions of the Act. For these reasons, the Constitutional Court shall be deemed to

This claim for unfounded.



XI.



The new definition of the standard of the law guaranteed health care



347. As regards the objection in relation to individual provisions, Misc.

the participants in the first place, rails against the section 4, paragraph 4. 5 and § 28 paragraph. 2 of the law on

health services. Unlike the existing section 11 (1). 1 of the law on

care about the health of the people, which provide health care facilities

"health care in accordance with current medical knowledge available

Science ", provides for new arrangements for patients the right to the provision of

health services only on "the appropriate level of expertise", which defines the

"with regard to the specific conditions and objective options." In this change

see secondary participants in the reduction of the standard (quality) Act

guaranteed health care, which are medical facilities required to

provide patients, in breach of article. 4 and 24 of the Convention on human

rights and Biomedicine and article. 31 of the Charter, as well as reduce their legal

certainty that they will be treated properly and the best, as in the health sector in the 21st century.

of the century.



348. The contested provisions read as follows:



"section 4



...



(5) the appropriate support levels means the provision of health services

According to the rules of science and accepted medical practices, while respecting the

the individuality of the patient, having regard to the specific conditions and objective

options.



...



section 28



(2) the patient has the right to the provision of health services to the appropriate

expert level. "



349. the Reasoning side participants while directed even against section 45 to 47

the law on health services, which define the obligations of the providers

health services, its essence, however, lies in the tvrzeném omission

the legislator to lay down the obligation to treat the patient as best as possible and in a timely manner.

Due to the fact that their contents did not otherwise affect,

The Constitutional Court considers necessary, even with regard to their scope, indicate the

These provisions in full.



350. The Constitutional Court had to deal with in the first place, the contested legal content

Edit, evaluate, in what direction represents the offset compared

the legal status of, and assess its constitutional significance. The contested

the provisions of the general way of defining technical standard (lege

Artis), which must comply with the provision of health care and other

health services in the territory of the Czech Republic. In essence, it is a

the law limits how the performance of this activity (article 26 of the

Of the Charter), which applies to all health care workers and whose purpose is to

the protection of life and health of persons, which provide the type and form of

health care. Improper treatment when granting it would with

due to the nature of the specific procedure could lead to serious negative

interventions to health or physical integrity of individuals, which is

care should be provided not only to serve that purpose, but should itself

become a danger for the values, the protection of the Act. The meaning as follows

a defined requirement, however, is broader and reflected also to the fulfilment of the

the right to life under article. 6 of the Charter and the right to protection of health and to the

health care according to the article. 31 of the Charter. This right corresponds to the obligation to

of the State to create a public health insurance system and its

through to provide citizens fair, hence the emergence of possible

inequalities, negative, way to access to health care, adequate

the quality of the [resolution of 5 May 1999, SP. zn. PL. ÚS 23/98 (33/14

SbNU 319)]. All insured persons should be equally entitled to

such treatments and cures that are objectively identified needs and

the requirements of the proper level, and medical ethics. The suitability and effectiveness of the treatment

(thus its quality) Vice versa shall not constitute criteria for distinguishing

health care on the base (cheaper) and premium (more expensive) [cf..

find of the day 4. June 2003, SP. zn. PL. ÚS 14/02 (N 82/30 SbNU 263;

207/2003 Coll.)].



351. The legal obligation, to health care, or health services were

provided "in accordance with the current available knowledge of medical science"

(article 11, paragraph 1, of the law on health care of the people) or "according to the rules of science and

accepted medical procedures "(the contested provisions), is defined by

only in outline, and its contents is instantiated, a summary of the available

professional public accepted and verified knowledge of medical practice

Science in a particular time period. However, this does not mean that it would be for your

the addressees of the vaguely defined or vague. The ability to answer the question whether the

the procedure corresponds to her or not, is to be seen in the context of the

qualifications for the performance of the individual health

the profession. In a similar way is ultimately defined the obligation in article.

4 the Convention on human rights and Biomedicine, which is any

intervention in the area of health care, including scientific research, should be

carried out in accordance with relevant professional obligations and standards.



352. The requirements arising from the existing and new legislation is not,

as regards the quoted part, the substantial difference, while another conclusion

does not warrant nor the other characters contained in the definition of "proper professional

the level of "under section 4 (4). 5 of the law on health services. Request

respect for the individuality of the patient follows already from the fact

that the effect or the appropriateness of a particular type of treatment or surgery may be

vary depending on the person of the patient, his mental and physical condition.

You cannot mark a novum but neither account "on specific conditions and


objective options ", which are undoubtedly meant as a specific

the circumstances in which the provision of health services has, so i

the current options of individual medical devices do

their provision in a certain way.



353. Just for this character definition of proper professional care covered

secondary participants in its objections, saying that the result already

the law on health services (as opposed to the previous legislation) does not insist on

What is the best treatment for the patient, therefore-in other words-that was

treated in accordance with the highest level of scientific knowledge. The Constitutional Court

However, of the opinion that such a request from the constitutional right to infer

cannot be. Above all, it should be noted that the definition of the conditions under which the

the individual may have rights to health care, within the meaning of article.

in conjunction with article 31. paragraph 41. 1 of the Charter. His discretion is

While limited both the General principles associated with the principle of the rule of

the State, in particular the principle of equality and the prohibition of arbitrariness, and the requirement of

respect for nature and the meaning of constitutionally guaranteed rights (article 4, paragraph 4,

Of the Charter), which in the case of social rights generally the nature of the guarantee

a particular implementation or services that track a constitutionally qualified

the purpose of the. It is, therefore, defined the conditions for application of the law

According to the article. 31 of the Charter, which allow access to individual insureds

health care, which will deliver the above requirements of its quality.

Any granted claims, however, are bound to the framework of the health

insurance and the associated limiting factor, which is a limited volume of

financial resources for the payment of health care [cf. findings from 10 June.

July 1996, SP. zn. PL. ÚS 35/95 (N 64/5 SbNU 487; 206/1996 Sb.)

voucher for "available resources" according to the article. 3 the Convention on human rights and

Biomedicine]. The statutory requirement of guarantee from a global point of view

the best level of health care delivery, therefore, instead of the actual

increase its standard led with the most likely to be

This level has become an unattainable quantity of selected cases, and with the

regard to its cost would approach the individual contrary to health care

de facto limited. Another interpretation eventually admitted nor section 11 (1). 1

the law on the care of the health of the people, that the minor participants considered

constitutionally Conformal. Even in his case could not be overlooked the factual

(financial, knowledge and personnel), which were and are specifying

for the scope and form of the provided health care in the Czech Republic (cf..

for example. Brenda c, D-Santhosh S, criminal law and health, Prague:

Orac publishers, 2000, p. 16-17). The answer to the question whether the

the specific type of treatment, always the best possible, or whether it will be

the preferred option, other (cheaper) option, therefore always depend on the discretion of the

the legislature, respectively, on the manner in which lays down the rules which

the decision on this issue. Such legislation

of course not yaw from the limits, for the definition of the content of the rights under the

article. 31 of the instrument resulting from the constitutional order.



354. For these reasons, the Constitutional Court came to the conclusion that the challenged

the provisions clearly are not in conflict with article. 31 of the Charter or with the article. 4 of the Convention

on human rights and Biomedicine, which is in the content. This is the

also excluded and namítaný contradiction to article. 24 of this Convention, which guarantees the

the person who has suffered injury caused by the crackdown, a claim to a fair

damages, and under the conditions and procedures laid down by the law. Side

participants of such a contradiction argued on the grounds that, in their opinion, the

the law guarantees the lower level health care than the Convention.

Finally, the Constitutional Court did not find the unconstitutionality of the contested provisions,

or section 45 to 47 of the law on health services, because of the alleged

the absence of the obligation of health facilities to provide health care

the proper and timely. To do this, it is sufficient to note that the requirement is

included in the obligation to follow the rules of science and recognized

medical practice, therefore, this claim is completely irrelevant.



XI./c



Ignoring the factual competence of the patient to decide about their rights



355. The Convention on human rights and Biomedicine, in its article. 6 (1). 2

provides that "If a minor is not eligible by law to

the granting of consent to the surgery, the surgery cannot be performed without the permission of the

its legal representative, official, or other person or body,

that are authorized by law. The opinion of the minor will be

taken into account as a factor, whose binding force is increasing in proportion with age and the degree of

maturity. " Secondary participants believe that section 35 of the Act on

health services is in breach of those provisions, since it leaves out the

the effective capacity of minors to consent to health

care. Instead, it only provides the obligation to record the opinion of a minor,

eventually. whether or not a patient deprived of legal capacity, to

medical documentation.



356. The contested provisions of section 35 of the Act on health services:



"§ 35



(1) a minor patient and a patient deprived of the eligibility to

legal capacity of the health services with the consent of his

the legal representative, with the exception of cases, when can health services

provide without consent. However, it is always necessary to determine the opinion of the minor

the patient, who is with regard to your age able to perceive the situation and

Express, and the view of the patient free of legal

capacity. If the patient, referred to in the second sentence of his opinion, the

the medical documentation; to the medical documentation is also

records the reason for which could not be detected in the patient's opinion.



(2) in the case of a minor patient,



and whose legal representatives) are the parents,



1. the consent of both parents, and to the provision of health services, which

may substantially adversely affect other health

the patient or the quality of his life,



2. the consent of at least one of the parents, and to provide health

services that are not health services referred to in point 1, or to the procedure

referred to in subparagraph (b));



This is without prejudice to the possibility to provide medical care without consent under section

38,



(b)) who have completed the age of 15, he can be a health service provided by the

the authorising service provider to provide without the consent of the discovery

the legal representative, if the legal representative of such a procedure shall be expressed

written consent, which may make subsequent informing about the

provided by the health services; written consent of the legal representative

is part of the medical literature conducted by Alex to the patient,



(3) the service provider shall notify the Court within 24 hours for the purpose of the provisions

guardian, the



and cannot get to provide) medical services, the consent of both parents

in accordance with paragraph 2 (a). and point 1, or)



(b)) the patient's opinion referred to in paragraph 1, for the provision of health

services, which may substantially affect his next

the State of health or quality of life and which cannot be provided without the

consent, is contrary to the opinion of its legal representative.



(4) in the case of health services, which can be under section 38 provide without

consent and if necessary to save the patient's life or health

referred to in paragraph 1 and do not accept if the parents or one of them, or other

the consent of the legal representative, shall decide on the provision of health services

doctor or other health professional, designated by the

by the provider.



(5) in the case of a patient referred to in § 28 paragraph. 4 the provider excludes,

If the suspicion that this patient abused or tortured or, where appropriate,

It is threatened by its healthy development, the presence of the persons referred to in section 28

paragraph. 3 (b). (e)) in the provision of health services as regards

examination for the purpose of exclusion marks referred to facts. "



357. The contested provisions is based on the text of the article. 6 Convention on human

rights and Biomedicine, the text of which, in its paragraph 1 basically

takes and in its other paragraphs it further developed. While referred to

the article assumes that even if the procedure can be performed on the Alex

only with the permission of his legal guardian, will be taken into account and feedback

minors as a factor, whose binding force is increasing in proportion with age and

the degree of maturity, the provisions of section 35 of the Act on health services

provides only the obligation to write the opinion of the minor patient or

the patient is free of legal acts to the medical

the documentation. However, this fact does not preclude in any way to perform its constitutionally

Conformal interpretation, which he admitted the wider meaning of that

that this view will be taken into account. In addition, the law itself foresees its

relevance, as it addresses the situation where different views of the minor patient

or a patient deprived of legal capacity and their

the legal representative. The Constitutional Court therefore notes that the light of the

non-compliance with the constitutional order in the question of insufficient taking into account will

These persons.



XI./d



Limitation of the application of previously express wish



358. Another objection applied are against the time constraints, the validity of the

previously has issued pursuant to § 36 paragraph wishes. 3 of the law on the health

services for 5 years. The minor parties are also convinced that the section

paragraph 36. 6 of the Act on health services, it is not clear whether it is the reason

non-application of previously express wishes of the deprivation of legal

capacity at the time of assent, or at the time of the provision of health

the service. For acting against the freedom of the citizens of their rights,

the health and future life consider § 36 odst. 5 of the law on health

services, although in this case, having regard to the additional argument to go

only about incorrect indication (paragraph 3).



359. The contested provisions of § 36 of the Act on health services:



"§ 36



The previously expressed wishes of



(1) the patient may, where he got into such a health

the State will not be able to consent or object to the

the provision of health services and the manner of their provision, this

approval or disapproval in advance to speak ("the previously expressed

greeting card ").



(2) the provider will take into account the previously expressed wishes of the patient,

If it is available, and under the condition that at the time of the granting of


health services there was a predictable situation, to which the previously

expressed the wish, and the patient is in such a condition when

not being able to pronounce the new approval or disapproval. Will be respected

only such previously expressed wishes, which was made on the basis of the

the written instruction of the patient about the consequences of his decision, and that the doctor in the

General practical medicine for which the patient is registered,

or other treating physician in the field of health care, which previously

spoken wishes.



(3) Previously expressed wishes shall be in writing and must be accompanied

officially certified signature of the patient. Part of the earlier desire to express

a written communication referred to in paragraph 2. The validity of previously express desire 5

years.



(4) the patient may make a previously expressed wishes or admission to a care

provider, or at any time during the hospitalization, and for

the provision of health services that are provided by this provider.

Thus expressed wishes shall be recorded in medical records kept by the

the patient; the record shall be signed by the patient, health professional and the witness; in

this case does not progress referred to in paragraph 3.



(5) the Previously expressed wishes of



and should be respected, it is not) since its voicing have occurred in

the provision of health services to which this applies, to

such a development, that can reasonably be expected that the patient has expressed

agreement with their provision; the decision to disregard the earlier

express the wishes of the patient and the reasons that led to it, are recorded

the medical records kept by the patient,



(b)) could not be respected if it encourages such practices, which

the result is an active cause of death,



(c)) cannot be respected, if its fulfilment could endanger another person,



(d)), if they were not respected at the time when the provider not to

available previously expressed wishes, initiated such health services

whose interruption would lead to the infliction of death.



(6) the Previously expressed wishes not to apply, in the case of minor patients

or patients deprived of legal capacity. "



360. by the participants directly refer the constitutional standard that has

the contested provisions be in breach, the contents of their reasoning, however, is

obvious that it is an article. 9 to the Convention on human rights and Biomedicine, in accordance with

which will be taken into account previously expressed wishes of the patient regarding the

the medical procedure, if at the time of the surgery, the patient is not in a State where

can express their wishes. It should be noted that, although this provision was

from the moment when the Convention became binding, directly, the

the legislature on the existence of this law for a long time not for its

the performance of modified my more detailed conditions. The first time ever to do so in section 36

the law on health services.



361. The Institute previously has issued request that the patient has expressed

approval or disapproval with the provision of certain health care services or

in a way its provision in case he got into such a

the State of health in which it will not be able to pronounce. The seriousness of the consequences of

This speech will require that about whether it made just the

the patient, there was no doubt. Disagreement with a particular surgery

can lead to the deterioration of the health status of the patient, or even to

his death. The Constitutional Court therefore does not consider inadmissible restriction of the

the law, if the law of his application shall make certain formal

the requirements, which will prevent any abuse of the Institute and

will make the actual contents of the will was this patient clearly

appreciable. Also cannot be above reproach or request lessons of the patient

the competent doctor about the consequences of his decision, which extend even to the

This speech will fully corresponds to the meaning of informed consent in accordance with article.

5 of the Convention on human rights and Biomedicine. In both cases, so you can

the legal basis for these restrictions found in the article. 5 and 9 in conjunction with article.

27 of this Convention, that allows to provide greater legal protection in

the application of biology and medicine than is stipulated in this Convention.



362. In addition to the above conditions but the law also lays down a time

the border force previously has issued a wish on for 5 years. The purpose of the

This measure, which pointed out in its comments, the Minister of

health is the protection of the patient with regard to the expected developments in the

medicine. New medical procedures, which at the time of the pronouncement of the desire could not

be patient, might be a relevant reason for change

his decision, if he knew about them and State of health would allow him to

decide on the provision of certain health services. The law therefore

It assumes that if a patient has an interest in the duration of the previously expressed wishes,

This desire must pronounce (and thus attest to) repeatedly with certain

time lapse. The option to do so again is not

limited and can be used at any time, even before the expiry of this period.



363. The Constitutional Court in this connection's posed the question whether such

the adjustment is not contrary to article. 9 to the Convention on human rights and Biomedicine, which

provides for the obligation to take into account the wishes of the patient, without force

This wish with regard to the passage of time however was limited. When it is

assessment arose from the purpose of this Institute. As has already been

stated, article. 27 of the Convention on human rights and Biomedicine allows you to

take such legal measures, the effect of which will be provided

greater legal protection to the application of biology and medicine. This option in the

If the Institute previously has issued a wish undoubtedly includes

the measures, which will guarantee that this wish was taken seriously and with knowledge

the possible consequences of taking the request renewed confirmation of this wish

with a certain time lag, undoubtedly, is qualified to perform this guarantee

function. , But not always. It is necessary to distinguish between the situation where the new

voicing this desire on the part of the patient without major difficulties can be,

and when on the contrary-with regard to his health-can not. Just in

of these cases, the contested border of time getting into conflict with the

the purpose of the Institute before the express wishes. The patient had this wish

just in case, he showed that on its own will not be able to decide

the law, however, even in the case when such a situation occurs, makes its

another force of the new Act, which has already, however, on the part of the patient's

cannot be made. The consequences of that lack of legislation can be

demonstrate on the example of the patient affected by Alzheimer's disease,

that even before his medical condition no longer allow

approval or disapproval with the provision of health services,

reflected in the prescribed manner will, in the event of a heart attack was not

resuscitován. This wish may pay for several months or years after

will no longer be able to provide consent, the day after the expiry of the five-year period to

This desire but not be able to be taken into account, although with the exception of

This time there was no fact which would cast

duration of the desire, and the patient himself, his original desire cannot

say it again. The reasons for the original desire can be an expression

fixed the value beliefs of the patient, in which any

General reflection on this speech will they have an out-of-date as a result of the passage of

time had no factual justification.



364. The Constitutional Court is of the opinion that it is not compatible with the law of the patient

According to the article. 9 to the Convention on human rights and Biomedicine, in its earlier

expressed wishes could not be taken into account only as a result of the expiration of the law

set the period of its validity, if the patient does not have at the same time

the real possibility of these wishes to your expression of will to recover. Due to the

the fact that the contested provisions of such option allows you to, you must

the restrictions of the Rights considered as devoid of any constitutionally

qualified reason (cf. Article 26 and 27 of the Convention), in consequence of which

It is in breach of article. 9 of the abovementioned Convention. This non-compliance is of course concerns

only the last sentence of § 36 odst. 3 of the law on health services, in accordance with

that is a force previously has issued card 5 years.



365. As regards the objection of the prohibition of use of options previously has issued

in the case of under-age persons wishes or deprived of their legal

capacity, participants argued, in essence the uncertainty section 36, paragraph. 6

the law on health services. Such a conclusion, but it cannot be přisvědčit

already on the grounds that this provision clearly applies to the

the situation, when a person wants to say in it referred to previously expressed wishes, and

not a person was up to then, what made the speech in question

will, deprived of legal capacity. The latter situation

on the contrary, in practice will typically create a space for the application of this

of the Institute. Referred to the claim therefore is not warranted.



366. The possible incompatibility of § 36 odst. 5 of the Act on the health services of the

the reason for its action against the freedom of citizens to decide on their

the rights, health and future life, the Constitutional Court, because the

the side not the participants closer got divorced. Its essence while

It cannot be inferred from their other arguments.



XI./e



Denial of admission the patient or their care for him



367. by the participants identified the serious impact of section 48, paragraph. 1 and 2

Health Services Act, which regulates the care of grounds for termination

the patient, to the fundamental rights of the patient. They argue the grounds referred to in

their opinion, vague and misleading reason contained in paragraph 2 (a)

(c)), in which patient care will be terminated if one speaks

opposition to the provision of all medical services. The assessment of whether the

the reason was, it will be only in the power of the provider, the

the decision of the patient will be able to defend ourselves in any way. This is in contradiction with the

Convention on human rights and Biomedicine and article. 1, 4 and article. 7. 1

Of the Charter to the legalization of the existing illegal practice of refusing care

cancer patients who, for certain reasons, they don't want to experience

all of the proposed treatment.



368. The contested provisions of section 48, paragraph. 1 and 2 of the law on health services

added:



"§ 48



(1) the provider, the patient's choice, may refuse to accept

patient care, if




and the adoption of the patient) should exceed a reasonable work load or

its adoption prevents operational reasons, security personnel or

technical and material equipment of the medical device; crossing

únosného work load means the State when providing

health services for this patient to reduce the level of quality and

safety of health services provided to patients already adopted,



(b) the distance of the place of stay) would the patient do not permit in the case of

the provision of health services in the field of general practical medicine and

practical medicine for children and adolescents, the performance of the services or visiting



(c)) is not the beneficiary health insurance company with which the provider has

contract according to the law on public health insurance; This

the law does not apply to insured persons from other States of the European Union,

The European economic area or the Swiss Confederation, of the States,

with which the Czech Republic has concluded an agreement on social security,

including in the relevant range of demands on health care.



(2) the provider may terminate the patient care in the event that the



and demonstrably passes the patient) with his consent to the care of another

the provider,



(b)) as the reasons for the provision of health services; This does not apply,

If the registration of the provider; the provisions of § 47 odst. 2 is not

prejudice,



(c)) the patient by the opposition with the provision of any medical

services,



(d)) the patient seriously limits the rights of other patients, deliberately

and consistently does not comply with the proposed individual therapeutic procedure, if

the provision of health services agreement, or does not

internal regulations and his behavior is not caused by a medical condition,



(e) to provide the synergy necessary) has stopped for additional provision

health services; This does not apply if the failure to provide the synergy

related to the medical condition of the patient;



termination of care may not be an immediate threat to life or

the weighted damage the patient's health. "



369. The Constitutional Court does not find it a reason for their health care under section 48

paragraph. 2 (a). (c) health services) of the vague or open-ended.

The provision of health services is in accordance with § 28 paragraph. 1 of this Act and in

accordance with article. 5 of the Convention on human rights and Biomedicine tied to

the free and informed consent of the patient and their care

the patient is the logical end of the situation, when the patient does not agree with the

the provision of any health services.



370. In addition to the above reason, attack the secondary the participants lack of

options to defend themselves against an incorrect assessment of the existence of grounds

their care from the provider of the health facilities, this

the argument but it is not appropriate. Denial of admission the patient or their care

for him, without the legal conditions have been met, could lead to

consequences in the plane of the civil-law relations, particularly as regards the

any question of compensation. The patient is not in this

the meaning of guaranteed judicial protection of his rights in accordance with the article. paragraph 36. 1

Of the Charter. To do this, you can add that this protection is supplemented by

administrative supervision in the provision of health services, since the procedure

provider of health services in contravention of section 48 of the Act on health

deliktem is the administrative services under section 117, paragraph. 3 (b). and (b)) the same)

the law. Arguments of the participants is not incidental in relation to the contested

the provisions are reasonable.



XI./f



Non-health service



371. The law on health services allows health-care professionals

not to provide health services in the event of a direct threat to their life

or serious risk to the health or contrary to their conscience or

religion. Secondary participants are convinced that the contested

the provisions of section 50 of the Act on health services exposing patients to the risk of

the threat to their health, or even guiding them to commit a crime.

Criticism of the subject, the fact that health care workers will not go on

have to provide assistance, regardless of their own risk, as this

the obligation arises from medical oaths and of a number of professional codes of conduct.



372. The contested provisions of section 50 of the Act on health services:



"§ 50



The medical worker's rights



(1) a health care worker has the right to



and from the patient) to get information about the patient, which has

provide health services, is a carrier of infectious diseases under the Act on

the protection of public health, and other essential facts

relating to the patient's State of health,



(b)) to withhold in the event that occurred during their

the provision of direct threat to his life or a serious threat to his

health.



(2) the medical officer may refuse to provide health services

the patient in the event that the provision would be contrary to his conscience

or religion. This fact is obliged to immediately

inform the provider that will ensure patient another

the health care worker. If the provider to another

medical worker, shall ensure the patient another provider,

that he will provide medical services if the patient ensuring another

the provider shall not refuse. The record of the refusal to provide another

the health of the worker or the provider is part of the medical

documentation; the record shall be signed by the patient and the health professional.

Healthcare worker cannot refuse to provide health services

the patient of the reasons mentioned in the first sentence, if the refusal was

endangered the life of a patient or to a serious threat to his health and

the provider is not able to ensure the provision of health services to other

medical professional. According to the sentence of first to fourth is by analogy

progresses, the refusal of the provision of health services provider.



(3) the provisions of paragraphs 1 and 2 shall apply, mutatis mutandis, for other professional

personnel carrying out activities in connection with the provision

health services. "



373. In his draft expressly not interveners with what

the constitutional norm has to be contested, the provisions in breach of, and limited to

allegations of non-compliance with the professional codes of ethics, or even with the provisions

the Penal Code, which, however, cannot be considered in this proceeding.

No constitutional argument can be found only in the card on it,

that the granting of health care could be patients at risk

damage to health, which the Constitutional Court after the content page as a

the objection of non-compliance with the law on the protection of the health and health care by

article. 31 of the Charter.



374. It was stated that the legislature has very broad discretion for the

the regulation of this area of legal relations. The Charter confers on him, to

the law defined the conditions and extent to which it will be done right on the

free health care on the basis of health insurance, and

at the same time in the article. paragraph 41. 1 of the Charter provides that this right can

citizen sue only within the limits of the implementing laws. Assessment of the conformity of the

legislation with the basic law in accordance with article. 31 of the Charter depends in

first and foremost on whether such regulation by its very nature extends to the

the essence of this basic law (the second step of the test of reasonableness.

section 244 of this award). Otherwise, the definition of the content of this

political rights depended on the discretion of the legislature, and even as regards the

the question of expediency or necessity. Any review of the Constitutional

the Court in these cases is limited to respect the exclusion request

arbitrariness, which means that the specific legal provisions must be appropriate

to achieve the purpose of the carried out by law and must not be patently unreasonable [see.

find SP. zn. PL. ÚS 1/08, paragraph 103; find of the day 24. April 2012 SP. zn.

PL. ÚS 54/10, paragraph 48].



375. The essence of the rights under article. 31 of the Charter is the requirement that the law

allow for equal access of citizens to health care of reasonable quality, and

on the basis of public health insurance. To the actual fulfilment of the

This law then occurs through a complex system of legal

relationships, some of which arise between individuals and public authorities

(e.g. the obligation to pay insurance premiums), others again between the entities that are

each other in a flat position. This is mainly in the case of legal

the relationship between the patient and the healthcare provider or between such

the provider and the specific healthcare professional, patient

a health service provides. Just the latter the worker

covered by the contested provisions, which in part concerned resolves the conflict between

its obligations to provide health services, which was established as the

"restrictions on the pursuit of a given profession" within the meaning of article. 26 paragraph. 2 of the Charter,

and his rights to life and health, and the freedom of conscience and

religion. It does so using exceptions

from that obligation.



376. The opposition side of the participants do not concern the question whether the

the obligation does not interfere unduly in the basic law

health care workers, which is also the reason for which this plane

did not (at least not primarily) or the Constitutional Court. The possible non-compliance with the

on the contrary, the constitutional order see terms of the law on the protection of the health and

health care of persons for whose benefit the health service is to be

granted, that has to be as a result of statutory exceptions

the obligations of health care workers at risk. This conclusion, however, by

The Constitutional Court is not correct. Of the latter law follows the General

obligation of the State to ensure the provision of medical care to citizens, which, however,

does not mean that every healthcare professional must, regardless of their

conscience or religious beliefs, or values, which professes always

to provide any health care. From the perspective of law

Indeed, it is not essential that a health worker of this service

provide, but that its provision has occurred. If at the same time guarantees

§ 50 paragraph. 2 the phrase fifth Act on health services, this

in the case of refusal does not, if the rejection has been compromised

the life of a patient or to a serious threat to his health, and the provider is not

able to provide health services to other health care


the worker, it is quite evident that this adjustment does not affect the substance of the

rights under article. 31 of the Charter.



377. the situation is different in non-health service pursuant to section

paragraph 50. 1 (a). (b)) of the law on health services, i.e., in the event that the

If the provision was to direct threats to life

the health of the worker or to a serious threat to his health. This

the exemption will apply regardless of whether the patient is exposed to

the risk of damage to health or even death, and in specific cases

will actually aprobovat the result of that particular person at all will not be

provided health care. The contested provision is thus in this sense

touching the very nature of the right to health protection and medical care,

Therefore it must be examined whether intervention in this law for the protection of

the medical worker's rights to life and to protection of his health will hold up

in the test of proportionality. In other words, it is necessary to assess whether the right of

not to provide health care, having regard to the risk in question, which is

undoubtedly, the appropriate measures for the (eligible) the protection of life and the

health medical worker, outweigh the right of a person to protect the

her health, or for the provision of health care.



378. In the framework of the abstract control of constitutionality is the space for the answer

This issue is limited to a general weighing in collision standing values. The constitutional

the Court is convinced that the life and health of the medical worker are

values, which, in the exercise of the profession also belongs to the protection and

justifying the existence of limits in relation to the extent of the risk, which

referral can be from the medical worker absolutely require. What

can be considered a direct threat to life or a serious health threat but

depends on the assessment of the particular circumstances. From the point of view of this review

It is essential that non-health service measures must be

necessary, and cannot therefore be accepted in the case, if the risks

associated with its provision with regard to these circumstances

an effective way to eliminate. At the same time, however, the determination of the extent of the risk

It is not an exact thing and the possibility its objective assessment may always be

affected by the scope of the information that he had a medical worker in the

the relevant point of time available. If these conditions are met, can be

to state that the contested provisions restrict the right to health

care according to the article. 31 of the Charter in a manner that is in accordance with the article. 4 (4). 4

Of the Charter. Any further assessment of proportionality will be possible only in the

specific cases of the application of the contested provisions.



XI./g



Processing of personal data of the patient and the medical records management



379. The objection directed against the legal adjustment of the processing of personal data

patient and specifically dealing with its first number under section 52 of the Act on

health services lies only in his claim of non-compliance with a number of

the provisions of the Charter and the Convention in particular, without secondary participants

in any way suggested what specifically has this contradiction

consist of. The Constitutional Court therefore did not.



380. The same conclusion applies also for their objection in relation to § 53 and 54

Health Services Act, governing the conduct of medical

documentation and which side the participants complain that they do not constitute

the obligation to protect the documentation in paper form. Even in this case

in no way do not explain what has found its constitutional relevance.

The said request for the contested provisions, moreover, by the Constitutional Court

undoubtedly corresponds to the obligation to keep the medical documentation and

dispose of it in accordance with relevant laws and regulations according to § 53 paragraph. 1

the law on health services, in conjunction with legislation consultation

medical documentation, procurement of its extracts or copies referred to in §

65 to 69 of the law on health services.



XI./h



The definition of the position of the representative



381. the last objection directed against the side of the participants of section 14 of the Act

of health services, which sets out the conditions for the provision of a person

the professional representative of the provider of health services. The contested

the provisions of that vaguely defines what is a professional representative

responsible, and he admits that the one person she worked as a professional

the representative up to two medical facilities. Non-compliance with the law on

free medical care within the meaning of article. 31 of the instrument while in

There were insufficient guarantees that this care will be provided at a sufficient

the quality.



382. The contested provisions read as follows:



"section 14



Professional representative



(1) a professional representative expertly manages the delivery of health services.

Professional representative may be appointed a natural person who is



and eligible for separate performance) the medical profession under section 12 and

is a member of the Czech Medical Chamber, the Czech dental Chamber or Czech

the Chamber of pharmacists (hereinafter referred to as the "Chamber"), if the membership in the Chamber is

a condition for the exercise of this profession,



(b)) fully eligible to legal capacity,



c) impeachable,



(d)) the holder of a residence permit on the territory of the Czech Republic, if the

the obligation to have such authorization.



Professional representative cannot be established to a natural person, which takes

some of the obstacles to the granting of the permission referred to in section 17.



(2) the functions of the representative must be exercised in the employment

or similar relationship to the provider. This condition shall not apply, if the

professional representative statutory body or a member of the statutory body

the provider or if the professional representative of the spouse or registered

partner providers; even in this case must be a professional representative to

service providers under contract.



(3) the Professional representative shall carry out his duties to the extent necessary for the

the proper management of the support provided by the health services. The same person

Unable to perform the function of the vocational representative for more than 2

the provider.



(4) the Professional representative shall notify the provider of all

changes to the data referred to in the decision to grant permission to

the provision of health services, in the request for grant this permission and

in the documents to be submitted with this application, and the changes and additions to data

concerning the conditions for the performance of the functions of the representative and submit

documents about them. Changes and additions to the information referred to in the first sentence must professional

the representative published in 10 days from the date when they occurred.



(5) if the professional representative to perform his duties, or if it stops

meet the conditions for the exercise of this function, the provider is obliged to

appoint a new representative no later than 10 days from the date on which the

some of these facts. "



383. The provisions of section 14, paragraph. 1 of the law on health services, shows

that professional representative expertly manages the delivery of health services, alone

However, it is not their service provider within the meaning of this Act. His

Therefore, responsibility should not be confused with the responsibilities of the provider.

The argument, according to which it is not clear whether "its expertise and responsibility

concerns the provision of health services or the provision of expert management

These services "because it is not justified and absolutely devoid of

any constitutional relevance.



384. The remainder of the argument is based on the side of the participants, provided that the

the content of the right to medical care within the meaning of article. 31 of the Charter is not just

the definition of the extent to which will be provided free of charge on this care

the basis of the public health insurance, but also certain other

requirements, pointing to its quality. With this starting point you can agree

in the sense that a reasonable quality of provided health care is

fundamental to this care was eligible to achieve

reference purpose. The standard essentially must match the

the requirements arising from article. 4 the Convention on human rights and

Biomedicine. If you would, in this respect, the law did not allow any

or only presumed guarantee, it would be possible to think about its non-compliance with the

referred to constitutional law. Such a conclusion would, however, assumed that

the impugned legislation, the very nature of its content and meaning of the oblivious

the basic law, which, however, the Constitutional Court cannot přisvědčit.



385. Admission options, that one person is a professional representative to

the two providers, although in a broader sense of quality of the provision of

health care, however, not its content does not question the existence of its

effective safeguards. The limits and under the conditions laid down at the same time,

that this person must exercise his duties to the extent necessary for the proper

professional management of health services, is going to just

This feature not only for more providers carried out formally.

Assessment of suitability and correctness of this action, that is, whether it is

sufficient restrictions on two health facilities, but the Constitutional Court

It is not for you. His review may be restricted only to the already-mentioned question

the exclusion of arbitrariness, in which the contested provisions undoubtedly stands as

is eligible to achieve your purpose referred to above and in any case it

cannot be described as unreasonable. Or in relation to this provision, therefore,

the design is not reasonably ancillary participants.



XI./i



The other provisions of the law on health services



386. In respect of other provisions of the Act on the health services of secondary

the participants do not raise any objections, the Constitutional Court of the

compliance with the constitutional order.



XII.



The formulation of derogačních statements and their legal consequences



387. Of all of the above reasons, the Constitutional Court ruled that section 30

paragraph. 2 (a). (d) the Employment Act), as amended by Act No 367/2011

Coll., § 36 odst. 3 in the words "previously express desire 5

years. ", section 76 and 77, § 121 paragraph. 1 in the words "for a period of not more than 36

months from the date of entry into force of this Act, if it is not further specified

otherwise, "including the commas preceding them. 4, the first sentence in the words

"However, at the latest on the expiry of 36 months from the date of entry into force of this

the law ", including the commas preceding them. 4 second sentence and paragraph. 5

the law on the health services are not in accordance with the constitutional order,

Therefore, it is under section 70, paragraph. 1 of law No. 182/1993 Coll., on the Constitutional Court,

as amended by Act No. 48/2002 Coll., set aside.



388. In the case of § 30 paragraph. 2 (a). (d)) of the law on employment, as amended by


Act No. 367/2011 Coll., the fall in all cases the reasons for the derogation

applications, when, on the basis of this provision to disqualify the person from

the registration of job seekers. It shall not affect the validity of the

the decision, which was decided under this provision, the

the fact, however, does not preclude the derogation reasons were

taken into account in any subsequent review of these decisions,

applied to them, the person concerned has the legal means which the law

provides for the protection of its rights. Pursuant to section 71, paragraph. 2 of the law on the constitutional

the Court decision also does not prevent the recurrence of further classification of these

persons in the register of job applicants on the basis of their new application,

and even before the expiry of the period referred to in section 30, paragraph. 4 (b). (b)) of the law on

employment.



389. Furthermore, it should be noted that the cancellation of the relevant parts of section 121 of the Act on

health services means that they continue to remain in force

registration under the Act on health care in non-State medical

devices. The last sentence of § 121 paragraph. 1 of the law on health services,

that is not derogačním reason is without prejudice to the need to

interpreted in the way that individual providers to continue to

the option, but not the obligation to apply for new permission. This conclusion

However, it is only valid provided that the provider of health services

There has been no such change, as a result of which would be unable to carry out their

activities under the conditions laid down in the authorisation. In this case, the

He had to follow the General rules of the Act on health

services, which suggests its provisions and wording of § 121 paragraph. 3. He would have to

Therefore, to request its change.



390. in the meantime, if you have to grant permission to provide the

health services on the basis of the already resolved the request under section 121 paragraph. 5

the law on health services, and this in accordance with its paragraph 4 and to the demise

the existing registration, enforcement of such a decision is not this

finding no prejudice. The provisions of § 71 paragraph. 2 of the law on the Constitutional Court

in the case of such a decision does not apply, because the derogation in question

the reason for the release of the new option does not affect any permissions, but only

the obligation to ask for it.



391. The repeal of section 76 and 77 of the law on health services does not change anything on it,

the law still requires the existence of a national registry of medical

workers [cf. section 72 (1) (b), (d)), the law on health services].

Even after the publication of this finding in the collection of laws, therefore further applies

the transitional provisions of section 127, paragraph. 9 of the law on health services, in accordance with

which until the establishment of the new register in accordance with the existing

the legislation. In this case, it means that after this stage

period applies previous legislation the register of physicians, dentists and

pharmacists (cf. section 296 of this award). To establish a national registry

health workers will be able to occur only after the new legislature

in a way its contents.



392. In the rest of the Constitutional Court did not find the proposal reason and under section

70 paragraph. 2 of the law on the Constitutional Court rejected it.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, took to the opinion and decision of plenum

judge Stanislav Package, Ivana Janů and Vladimir Crust, to the dictum in

the decision of the judges of the plenum Vlasta Formankova, Pavel Holländer, Jan Musil,

Jiří Nykodým and Miloslav Výborný and to justify the verdict and decision

plenum judge Dagmar Lastovecká.