In The Matter Of The Application For Revocation Article. And Act No 190/1993 Coll.

Original Language Title: ve věci návrhu na zrušení čl. I zákona č. 190/1993 Sb.

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49/1994 Coll.



FIND



The Constitutional Court of the Czech Republic



On behalf of the Czech Republic



The Constitutional Court of the Czech Republic decided on 15. February 1994 in plenary in the things

mover-a group of 45 members of the Chamber of deputies of the Czech Parliament

Republic and the party to the proceedings-the Chamber of deputies of the Czech Parliament

of the Republic on the proposal to repeal article I of law No. 190/1993 Coll., which

are changing and supplementing Act No. 29/1984 Coll. on the system of basic and

secondary schools (the School Act), as amended,



as follows:



The provisions of article I of law No. 190/1993 Coll., which was amended

the provisions of section 4, paragraph 4. 1 of the Act No. 29/1984 Coll. on the system of basic and

secondary schools (the School Act), as amended, in

section sounding "unless the law otherwise" repealed on the date of publication of the award

in the collection of laws.



In the remaining part of the proposal is rejected.



Justification:



A group of 45 members of Parliament filed a proposal to repeal article. And Act No 190/1993

Coll., amending and supplementing Act No. 29/1984 Coll. on the system of

primary and secondary schools (the School Act), as amended

regulations. This article in the section 4, paragraph 4. 1 referred to the sentence "the Education and

education is free of charge. "shall be replaced by the phrase" in the schools, which are

part of the system of primary and secondary schools, citizens have the right to

free education, unless otherwise provided by law. ". Supporting conditional

the phrase "unless the law otherwise" in State schools introduced paid

Education (even if only partially), however, the provisions of this article. And the law

No 190/1993 Coll. gets into conflict with national law, and with the

the internationally legal obligations of the Czech Republic, namely with

the provisions of the article. 1, article. 9 (2). 2 and article. 10 of the Constitution of the Czech Republic, with

the provisions of the article. 5 (3). 2 of the constitutional law of the Czech National Council No. 4/1993

Coll. on measures associated with the dissolution of the Czech and Slovak

A Federal Republic, with the provisions of the article. 4 (4). 2 and 4, article. paragraph 33. 2

and the article. paragraph 41. 1 of the Charter of fundamental rights and freedoms (the "Charter"),

with the provisions of the article. 4 Convention on the fight against discrimination in the area of

education, with the provisions of article. 28 and article. 41 of the Convention on the rights of the child, with

the provisions of the article. 5 and article. 13 of the International Covenant on economic,

social and cultural rights and with the provisions of the article. 27 of the Vienna Convention

about contract law.



The Chamber of deputies of the Parliament of the Czech Republic in a letter of 6 February.

December 1993, signed by its Chairman PhDr. Milan Uhdem,

expressed so that the legislature adopted the law takes the

The Constitution secured the Division of State power is exclusively on the Constitutional

the Court, in the context of the examination of the proposal of the Group of 45 members assessed

the constitutionality of this law and issued the appropriate decision.



From těsnopisecké news on 10. a meeting of the Chamber of deputies of the Parliament in

15. -17. June 1993 indicates that Act No 190/1993 Coll., which

are changing and supplementing Act No. 29/1984 Coll. on the system of basic and

secondary schools (the School Act), as amended,

containing the disputed article. I was at this meeting adopted the necessary majority

members pursuant to the provisions of section 39, paragraph. 1 (a). 2 of the Constitution of the Czech

of the Republic. This law was promulgated in the collection of laws of the Czech 48 amount

Republic by 15 May. July 1993 and this day also took

efficiency. To the examination and adoption of the law was based on the own-initiative

the proposal of members (print no. 193) and the joint report of the committees

(print no. 342). You can therefore be considered that the law was enacted and issued

within the limits of the Constitution laid down the competence and the constitutionally prescribed manner (section

paragraph 68. 2 Act No. 182/1993 Coll., on the Constitutional Court).



In the present case, it is a question of whether the right to free basic and

secondary education has its unconditional nature, or whether in this area has

its legal justification and exemption, in the case of the uvozená side

conditional sentence "unless the law otherwise". This question gives the

a clear answer, above all the Charter, which given the article. paragraph 112. 1

The Constitution of the Czech Republic is part of the constitutional order of the Czech Republic and

that in itself the provisions of article. paragraph 33. 2 admits a citizen as one of the

his fundamental rights, whether or not the right to free education in elementary and

secondary schools. Within the meaning of the provisions of the article. 4 (4). 2 of the Charter may be

the limits of fundamental rights and freedoms governed under the conditions laid down by the Charter of

only by law, in the application of this provision must, however, be investigated

the essence and the meaning of fundamental rights and freedoms (article 4, paragraph 4, of the Charter). (I)

When according to the article. paragraph 41. 1 of the Charter of rights referred to in article. paragraph 33. 2

Of the Charter, i.e.. the right to free education in primary and secondary

schools can sue only within the limits of laws that these provisions

carried out, can hardly be considered that, with the investigation of the limits of fundamental rights and

freedoms would still be compatible legal exception to the contested

nepodmíněnost of the right to free primary and secondary education.



This conclusion is confirmed also ratified and proclaimed human

rights and fundamental freedoms, which the Czech Republic is due to the

the provisions of § 5 (3). 2 of the constitutional law of the Czech National Council No. 4/1993

Coll. on measures associated with the dissolution of the Czech and Slovak

Federative Republic, tied after this dissolution and which according to the article. 10

The Constitution of the Czech Republic are directly binding and have precedence over the

by the law. In particular in the International Covenant on economic, social

and cultural rights announced under no. 120/1976 Coll. is a recognised right

everyone to education (article 13 (1)) and at the same time provided that the

achieve full implementation of this right is necessary to the basic

education was compulsory and free for all, and to

possible and made available to both secondary and higher education, and it also

the gradual introduction of free education [article 13, paragraph 2 (a)), (b)),

(c))]. Also in the Convention on the rights of the child proclaimed under no. 104/1991.

recognized the right of the child to education, saying that for the purposes of the progressive

the implementation of this law and on the basis of equal opportunities is particularly

put in place for all children to free and compulsory basic education and

encouraged the development of different forms of secondary education, and even such

measures, such as free education [article 28, paragraph 1, point (a), (b)))].

Yet in the article. 41 (a). and (b))), of this Convention States that nothing in this

the Convention is without prejudice to the provisions which more fully help

the implementation of the rights of the child and which may be contained in the rule of law

a State which is a Contracting Party, or in international law, which is

for such a State. Then referred to article Convention on the rights of the

the child also corresponds to the article. 5 (3). 2 of the International Covenant on economic,

social and cultural rights, according to which any restriction or

a derogation from any of the fundamental human rights recognized or

existing in any country on the basis of law, conventions, regulations or

practice will not be admitted on the pretext that such rights Pact

does not recognize or that is recognized to a lesser extent.



So far as the Constitutional Court therefore shares the reasons which led the Group of 45 members to

submission of the proposal. By contrast, there is no reason to conclude that the article. (I)

Act No 190/1993 Coll. was without prejudice to the article. 27 of the Vienna Convention on the contract

the law announced under no. 15/1988 Coll., since, as regards the contested article,

the legislature is neither as the reason for the proposed adjustment of some

the provisions of their national law (article 27). The Constitutional Court has also

for that, you cannot apply in the present case neither the provisions of the article. 4

Convention on the fight against discrimination in the area of education, since this Convention

has not yet been published and, therefore, due to the article. 10 of the Constitution of the Czech

Republic would as well could not take precedence over the law.



The Constitutional Court therefore for these reasons decided that the provisions of the article. (I)

Act No 190/1993 Coll., which was amended accordingly by the provisions of section 4, paragraph 4. 1

Act No. 29/1984 Coll. on the system of primary and secondary schools, as amended by

amended, in section sounding "unless the law otherwise",

repealed on the date of publication of the award in the collection of laws, for his conflict with

the provisions of the article. 1, article. 9 (2). 2 and article. 10 of the Constitution of the Czech Republic, with

the provisions of the article. 5 (3). 2 of the constitutional law of the Czech National Council No. 4/1993

Coll. on measures associated with the dissolution of the Czech and Slovak

A Federal Republic, with the provisions of the article. 4 (4). 2 and 4, article. paragraph 33. 1

and the article. paragraph 41. 1 of the Charter, with the provision of article. 28 paragraph. 1 (a). and (b)))

article. 41 (a). and (b)) of the Convention), about the rights of the child proclaimed under no. 104/1991

Coll., with the provisions of the article. 5 (3). 2 and article. 13 (3). 2 (a). and), b), c)

The International Covenant on economic, social and cultural rights

declared under no. 120/1976 Coll. Otherwise, however, in the rest of the proposal

rejected, since this part of the contested article, referred to in section 4, paragraph 4. 1 sentence

"In the schools, which are part of the system of primary and secondary schools,

citizens have the right to free education, "is with the above standards

in full compliance.



The award is enforceable on the day of its publication in the journal of laws.



The President of the Constitutional Court of the Czech Republic:



JUDr. Kessler v.r.

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